1995 PLP 1900 (CLC)

Ch. Nazeer Muhammad for Respondents. Date of hearing: 5th June, 1995. This judgment will dispose of Writ Petitions Nos.9663/94 and 9664/94. Both of these petitions are interconnected; are between the same parties and have arisen out of common factual background. These are, therefore, being disposed of through single judgment.

2. The facts, briefly stated, giving rise to these petitions are that Zahoor Illahi/petitioner and Mst. Irshad Illahi/respondent, were married on 25‑10‑1962. In 1965 Mst. Farhat Shaheen was born out of this wedlock. The relations between the two, however, took an unpleasant turn/leading to multiple litigation. On 7‑10‑1992 the respondents brought suit for the recovery of dowry articles against the petitioner in the Court of learned Senior Civil Judge, Sargodha/alleging therein that at the time of marriage the respondent was given dowry valuing Rs.1,12,000; that the same was being detained by petitioner without any lawful reason; that the value of dowry articles was Rs.1,12,

000. In this, apart from the petitioner 6 other persons were impleaded as defendants Nos.2 to

7. The respondents filed yet another suit for the recovery of her maintenance at the rate of Rs.3,000 per month against the petitioner in the Court of Family Judge, Sargodha. This was not the last suit. She initiated another action for the recovery of maintenance of Mst. Farhat Shaheen at the rate of Rs.3,000 per month against the petitioner in the same Court. All these three suits were contested. It was on 13‑1‑1993 when the learned trial Judge ordered the deletion of defendants Nos.2 to 7 from the array of defendants in the dowry suit. Against this order, Mst. Irshad Bibi filed two applications; one was for the review of the above order. The other application sought the decision of the cases on the statement of the petitioner given on special oath. These applications were dismissed by the learned trial Judge vide order dated 17‑3‑1993. Feeling aggrieved, the respondents preferred a revision petition before the Court of learned District Judge, Sargodha. When the said revision petition came up for hearing on 12‑6‑1993, the respondents proposed that if the petitioner stated on oath, that the articles of dowry mentioned in the plaint were not in his possession, her suits be dismissed and in other case the suits be decreed. The petitioner readily accepted this proposal and stated on oath that the articles of dowry marked by him in the list of articles attached with the plaint in the dowry suit, were with him; that he was prepared to return these articles to her and was prepared to pay an amount of Rs.40,000 as help for the marriage of his daughter to the respondent No.1. He further stated that he would comply with the above terms up to 12‑9‑1993. On this statement, the learned District Judge disposed of the revision petition in the terms of the statement of the petitioner vide order dated 12‑6‑1993. 3 This, however, did not bring peace between the parties. The maintenance suits filed by the respondent No.1 were dismissed by the learned Judge Family Court, Sargodha on 27‑4‑1993. Against this decision, the respondent No.1 preferred an appeal which, however, was withdrawn on the premises of order of Revisional Court dated 12‑6‑1993. In this factual background only the suit for dowry remained pending before the first Court. The learned first Court on 8‑5‑1994 sent the suits to the learned District Judge, Sargodha. All these suits reached the Court of learned District Judge on 19‑9‑1993. These were registered on 20‑9‑1993. On 12‑9‑1993, the respondent applied for marking her presence in the dowry suit. The learned District Judge holding that the terms of the order dated 12‑6‑1993 had not been complied with and so he decreed all the three suits, namely the dowry suit and the two maintenance suits.

4. Feeling dissatisfied with the above, decision the petitioner filed three Constitution, petitions bearing W.P: No. 17397/93, 17398/93 and 17399/93 which were disposed of by my learned brother Falak Sher, J., on 21‑2‑1994/directing the petitioner to seek his redress before the lower forum. The petitioner was also given the right to the refund of Rs.40,000 deposited by him as security. Pursuant to the aforestated order, the petitioner filed two review applications in the Court of the learned District Judge, Sargodha. One review petition was filed on 21‑3‑1994 and the other was filed on 11‑7‑1994. The first review petition was accepted by the learned District Judge and the dowry suit was remanded to the first Court with the direction to decide the same afresh by holding de novo trial. The second review petition, which pertained to maintenance suits, was however, dismissed on 12‑7‑1993. This is how these two Constitution petitions have come to this Court. 5 The learned counsel for the petitioner, in support of these petitions, raised three points, i.e. Firstly that the learned Revisional Court had dismissed maintenance suit and these suits were not pending before him. Continuing further, the learned counsel contended that after passing the order dated 12‑6‑1993, the Revisional Court had become functus officio and so had no jurisdiction to pass the order dated 22‑9‑1993, 11‑7‑1994 and 12‑7‑1994. Secondly; that the dowry suit was under section 9 of the C.P.C. while the two maintenance suits were filed under the provisions of West Pakistan Family Courts Act, 1964. According to the learned counsel the family suits/maintenance suits were never sent to the learned District Judge and he was not seized of the above suits. Thirdly, that the remedy of the respondent was to approach the first Court in pursuance of the order of the learned Revisional Court dated 12‑6‑1993.

6. The learned counsel for the respondent, on the contrary, strenuously supported the impugned decisions rendered by the learned Revisional Court by saying that it had, in fact, implemented the order dated 12‑6‑1994. He further stated that so far as the order dated 11‑7‑1994 was concerned, it was passed with the consent of the parties.

7. During the course of arguments, the learned counsel for the parties agreed that the impugned decisions rendered by the learned Revisional Court were coram non judice as no lis was pending before the forum. On the basis of this conclusion, they agreed that the impugned decisions rendered by the learned District Judge/Revisional Court be set aside and all the three suits be remanded to the learned Senior Civil Judge Sargodha/Judge Family Court to decide the same in the light of decisions of Revisional Court dated 12‑6‑1993. The learned counsel for the petitioner, even specifically submitted that he was prepared to abide by the aforesaid decisions and will have no cavil with it. Be that as it may, it will be futile to give any direction in this respect. . For the foregoing reasons and with the concurrence of the parties I hereby accept both the writ petitions, set aside the order of Revisional Court dated 12‑6‑1993 and remand all the three suits, namely, the, dowry suit and the two maintenance suits to the learned Senior Civil Judge/Judge Family Court, Sargodha with the direction to decide the suits in terms of decision of the learned District Judge dated 12‑6‑1993. The parties shall be entitled to raise all the points available to them and the Court shall be required to deal with all the questions raised before it strictly in accordance with law. Since this decision has been rendered with the concurrence of the parties, therefore, there shall be no order as to costs. AA./N‑335/L Order accordingly.