P L D 1983 Lahore 462 (PLP)

This is an application under section 25-A(1) of the W. P. Family Courts Act, 1964 for transfer of a suit for recovery of dower titled "Mst. Zarina v. Muhammad 1lyas" from the Judge, Family Court, Shorkot, District Jhang to the Judge, Family Court, Lahore so that the aforesaid suit be heard alongwith the suit of the petitioner against the respondent for restitution of conjugal rights titled "Muhammad 11yas v. Mst. Zarina".

2. The facts necessary for the purposes of this application briefly stated are that the petitioner and the respondent were married at Sheikhupura on 2-4-1978. The parties could not pull on after some time and separation took place. The petitioner has instituted a suit for restitution of. conjugal rights on 23-2-1981 which is pending before a learned Judge, Family Court, Lahore.

3. The respondent, on the other hand, claims that she was divorced by the petitioner through a notice served by the respondent on the Chairman, Union Council, Shorkot, upon which the petitioner was required to appear through a notice issued by the said Chairman, but he failed to appear and as a result Talaq took effect as certified by the Chairman, Arbitration Council, 'by his order dated 1 i-6-1981. She, on 9-6-1981, filed before the Judge, Family Court, Shorkot, District Jhang a suit for recovery of dower against the respondent which is sought to be transferred through this applications

4. The learned counsel for the petitioner contended, first: that the suit of the petitioner filed at Lahore is earlier in time than the suit of the respondent instituted by her at Shorkot and that this later suit is only a counterblast ; secondly, that common questions of law and fact, especially as to whether the marriage between the parties has already been dissolved or not are likely to arise in both the suits and it would therefore be conducive to the ends of justice that the two suits are heard together by the same Court ; and lastly, that the respondent has instituted the suit for recovery of dower at Shorkot only to harass the petitioner as she could not otherwise file the suit there. Elaborating his contention the learned counsel stated that under rule 6 of the W. P. Family Courts Rules, 1965 if a suit is instituted by a wife at any place as provided by the proviso to the aforesaid rule then she has to show that she is ordinarily residing at that place. It was urged that the respondent has in the title of her own suit shown that she is presently residing at Shorkot which does not mean that she is ordinarily residing there. The learned counsel for the petitioner relying on Mst. Khairun Nisa v. Sayed Abdur Rahim reported as P L D 1973 Kar. 237 also contended that the place of filing of suit is not dependent upon movements of the plaintiff or where she happens to reside for the time being."

5. On the other hand, the learned counsel for the respondent submitted as under (i) that the notice of Talaq was served by the petitioner himself on the respondent at Shorkot ; that he also sent copy of the Talaqnama to the Chairman of the Union Council, Shorkot on 4-1-1981 ; that the Chairman of the Union Council aforementioned summoned the respondent through notice dated 16-2-1981 ; that the divorce has taken effect at Shorkot as is evident from copy of the certificate of the Chairman, Arbitration Council dated 11-6-1981 (copies of all the above documents have been placed on record today). It was urged that the above factors show that the respondent is ordinarily residing at Shorkot ; (ii) that the respondent is residing with her brother at Shorkot and has to be deemed to be ordinarily residing there particularly when the service has been effected on her at Shorkot in the application under adjudication ; (iii) that address of the respondent given as "Fatal Building, 2 Cooper Road, Lahore" was, in fact, the address of the mother of the respondent who has since died and the question of her residing at Lahore does not arise. It was further submitted that the respondent never resided at Lahore ; (iv) Referring to the copy of the plaint of the suit of the respondent, the learned counsel submitted that in para. 8 thereof the respondent has clearly averred that she is ordinarily residing at Shorkot with her brother and therefore the mention of the word ? SAAKIN HAL SORKOT? in the title of the suit in no manner detracts from that position ; (v) that it being the admitted position that the marriage of the parties-was performed at Sheikhupura and that the parties last resided at that place there is no occasion for transfer of the case of the respondent from Shorkot to Lahore. It was argued that on the contrary the suit of the petitioner should be transferred from Lahore to Shorkot in exercise of suo motu jurisdiction of this Court so as to be tried with the suit of the respondent there ; (vi) that in transferring a case under the W. P. Family Court's Act the convenience of the lady litigant has to be given due consideration which has been held to be the all important and dominant factor. Reliance was placed in this regard on Irfrna Pal v .Javed Akhtar 1982 C L C 7 and Muhammad Akram v. Batool Bibi 1981 C L C 816."

6. In reply, the learned counsel for the petitioner submitted that it being the established position that the marriage of the parties was performed at Sheikhupura and that they last resided there, the suit of the petitioner as well as that of the respondent should be withdrawn from the Courts where they are respectively pending and entrusted to a Judge, Family Court at Sheikhupura. 7. 1 have given anxious consideration to the controversy involved. Rule 6 of the W. P. Family Courts Rules, 1965 reads as under "

6. The Court which shall have jurisdiction to try a suit will be that within the local limits of which (a) the cause of action wholly or in part has arisen, or (b) where the parties reside or last resided together Provided that in suits for dissolution of marriage or dower, the Court within the local limits of which the wife ordinarily resides shall also have jurisdiction." From a reading of the above rule it emerges that a suit under the W. P, Family Courts Act for recovery of dower could be filed at any of the following places (a) where the cause of action wholly or in part has arisen ; (b) where the parties reside or last resided together, and (c) the Court within the local limits of which the wife ordinarily resides." The filing of the suit under (c) above is by virtue of the proviso and appears to be a special right conferred upon the wife.

8. What has therefore to be seen is whether the respondent is ordinarily residing at Shorkot or not ? There is sufficient material available on record to show `that the respondent is ordinarily residing at Shorkot. Apart from what has been submitted in this regard by the learned counsel for the respondent, I also find that the service on the respondent in the present application has been effected at Shorkot through her brother Muhammad Saleem who is stated to be employed there in the National Bank of Pakistan. This having been urged by the learned counsel for the respondent and not, controvetted by the petitioner's side that the mother of the petitioner has died it stands to reason that the respondent is living with her brother who in the course of his employment is stationed at Shorkot. That being so, the respondent can legitimately claim to be ordinarily residing at Stiorkot. It may pertinently be observed here that no hard and fast rule ca be laid to determine the ordinary place of residence of a person. Such determination of necessity would be dependent on the attendant circumstances of each case. It may also be observed that in reply to a query made by me as to why the marriage of the parties was performed at Shetkhupura when the mother of the respondent had been residing at Lahore it was stated by the learned counsel for the respondent that the respondent has all along been living with her brother Muhammad Saleem and the marriage was performed at Sheikhupura as, at that time, Muhammad Saleem was posted at Sheikhupura. This having been established, as discussed above, that the respondent is ordinarily residing at Shorkot, no valid exception can be raised to he d having instituted the suit for recovery of dower at that place. The case P L D 1973 Kar. 237 cited by the learned counsel for the petitioner is distinguishable as it proceeds on a wholly different set of facts.

9. What is now left to be examined is the effect of institution of the suit by the petitioner earlier in time and as to whether the convenience of a lady litigant has any significance in deciding the transfer of the cases arising under the W. P. Family Courts Act.

10. Taking the last proposition first I suffice by observing that this Court has consistently held that the convenience of a lady litigant (wife) is? a dominant factor in deciding the transfer applications under the W. P. Family Courts Act. The above view also finds support from the two authorities cited by the learned counsel for the respondent on this point. As regards the first proposition, I may refer to Mukhtar Sultana v. Tasadaq (Tasadaq Hussain) (P L D 1979 Lah. 34(I)) and Mst. Mah Jabeen v. Ghulam Qadir (1982 C L C 2027), wherein it has been held that the filing of a suit by the husband earlier in time will no by itself present any impediment in the way of the transfer of his suit to a place where the wife subsequently institutes any suit against the husband. The matter in the light of the above principle can also be looked at from this angle that the petitioner (husband) would not have an edge for seeking transfer of the case of the respondent (wife) merely on the ground that he has instituted the suit earlier in time. 11. 1n view of the foregoing discussion I find that this application has no merit and it is accordingly dismissed. There will, however, be no order as to costs. M.Y.H.??????????????????????????????????????????????????????????????????????????????????? ??????????? Application dismissed.