2012 PLP 1631 (MLD)

IBAD-UR-REHMAN LODHI, J.

A suit for recovery of dower amount and dowry was filed on 18-9-2006 by respondent No.3 before the Judge Family Court at Lahore. The writ petitioner/defendant in the suit on appearance instead of filing written statement preferred a miscellaneous application under Rule 5 of West Pakistan Family Courts Rules, 1965 seeking return of plaint claiming lack of territorial jurisdiction by the Family Court at Lahore, mainly on the assertion that the articles of dowry which were claimed in the plaint were lying at Multan.

2. The learned Judge Family Court vide order dated 28-6-2007 dismissed such application after contest.

3. Feeling aggrieved of the dismissal of his application, the petitioner preferred an appeal under the provisions of section 14 of Family Courts Act, 1964 before the learned District Judge at Lahore and a learned Additional District Judge ceased of the matter describing the appeal as not maintainable being against the interim order dated 28-6-2007 and dismissed the same on 10-1-2008.

4. It was on 19-2-2008 when a Constitutional petition, preferred by the petitioner calling in question the findings of courts below was entertained by this Court and announcement of the final judgment in the case before trial court was stayed.

5. The learned counsel for petitioner on referring section 5 of the Family Courts Act, 1964 and Rules 5 and 6 of West Pakistan Family Courts Rules, 1965 has reiterated the stance which was earlier taken by him in the courts below and also in the memo of Constitutional petition. He has placed reliance on the judgments in the cases of Major Muhammad Khalid Karim v. Mst. Saadia Yaqub and others (PLD 2012 Supreme Court 66), Shakeel Ahmad v. Additional District Judge, Lahore and another (PLD 2008 Lahore 410), Muhammad Iqbal through Special Attorney Faiz Sultan v. Parveen Iqbal (PLD 2005 Supreme Court 22) and Syed Zia ul Hassan Gilani v. Mian Khadim Hussain and 7 others (PLD 2001 Lahore 188).

6. The learned counsel for respondent No.3 supported the findings arrived at by the courts below and prayed for the dismissal of the writ petition.

7. In addition to section 5 of West Pakistan Family Courts Act, 1964 which generally deal with jurisdiction of Family Courts, Rules 5 and 6 of the West Pakistan Family Courts Rules, 1965 are to be taken into consideration for resolution of issue raised here in the present petition. Rule 6 of the said Rules provides that 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. It is clear from the reading of language of Rule 6 that where the cause of action wholly or in part has arisen, the Court of such place shall have exclusive jurisdiction to try the suit filed before it.

8. The judgments, relied upon in support of his version by the learned counsel for petitioner, are not directly relatable to issue raised in this petition. The case of Major Muhammad Khalid Karim v. Mst. Saadia Yaqub and others (PLD 2012 Supreme Court 66) relates to the custody matter. A comparison was studied within section 7(2) of Family Courts Act, 1964 and section 9(1) of the Guardians and Wards Act, 1890 and point considered by the apex Court was with regard to the jurisdiction of a Court dealing with the custody matter under the Guardians and Wards Act, 1890. In the case of Shakeel Ahmad v. Additional District Judge, Lahore and another (PLD 2008 Lahore 410), it is the ratio of the judgment that it is the right of the wife to bring the suit within local limits of Family Court where she ordinarily resides and the ordinary residence is not to be determined through some hard and fast Rules. Again the case Muhammad Iqbal through Special Attorney Faiz Sultan v. Parveen Iqbal (PLD 2005 Supreme Court 22) is with regard to the Guardianship matters and lastly in the case Syed Zia ul Hassan Gilani v. Mian Khadim Hussain and 7 others (PLD 2001 Lahore 188), this Court has taken into consideration for determination of territorial jurisdiction, the provisions of Code of Civil Procedure contained in section 20 thereof.

9. I am afraid, in view of section 17 West Pakistan Family Courts Act, 1964 only sections 10 and 11 of C.P.C. can be made applicable to the proceedings before any Family Court but for determination of the jurisdiction sections 16 and 20, C.P.C. are not to be taken into consideration particularly in the prevailing position of legal provisions contained in Special Law viz. the Family Laws. The provisions of section 5 of the Act and Rules 5 and 6 of the Rules cater position with regard to the determination of jurisdiction of the Family Court and in presence of such provisions in Special Law, the provisions of General Law should not be taken into consideration.

10. In the plaint filed before the Family Court at Lahore in para 10, the plaintiff has categorically stated that she is permanent resident of Lahore where cause of action was also accrued, her such assertion has not been controverted by the defendant/writ petitioner. If para 10 of the plaint is read in conjunction with Rule 6(a) of West Pakistan Family Courts Rules, 1965 it would be manifestly clear that the Family Court at Lahore would have every jurisdiction to entertain and adjudicate upon the plaint presented before it by the plaintiff/respondent No.3. The courts below have thus dealt with the matter in accordance with law and arrived at just decision.

11. The respondent lady filed her suit for recovery of dowry articles and dower amount as back as in the year 2006 and as yet she has not succeeded in getting her suit decided on merits for simple reason that the petitioner has entered into a fight on technicalities and the parties have been fighting on such technicalities for the past almost six years.

12. The result is that the petition is dismissed, the findings of courts below are maintained with regard to jurisdiction of the Family Court at Lahore and the trial court is directed to decide the pending suit of respondent No.3 in some expeditious manner and would try to decide the suit finally before 31st of July, 2012. The parties are directed to appear before the learned District Judge, Lahore on 12-6-2012, who will entrust the trial of the suit to some learned Judge Family Court posted at Lahore. KMZ/A-109/L Petition dismissed.