2003 PLP 547 (MLD)

Ch. Ahmad Saif Ullah Khatana and Khawar Mahmood for Respondent No.3. Petitioner, Murid Hussain, has assailed the judgment and decree of respondent No.1, learned Additional District Judge, Chiniot dated 12‑6‑2001, whereby he had dismissed the appeal of the petitioner against the judgment of respondent No.2, learned Judge Family Court, Chiniot dated 27‑5‑2000, whereby he had decreed the suit of respondent No.3, Mst. Allah Jawai, for recovery of dowry in the amount of Rs.1,32,310.

2. Learned counsel for the petitioner has argued that the judgment of respondent No.2 was based on the statement of Muhammad Fazil, who had been appointed as referee by the parties and no referee could be appointed in family matters, therefore, the judgment based on the statement of the, referee is illegal and respondent No.1 has upheld the same without adverting to this legal lacuna; that the statement for appointment of referee was only signed by the learned counsel for the parties and not by the parties themselves, therefore, the petitioner is not bound by the same and the petitioner had filed an application on the same day repudiating the consent of his counsel but the same was rejected by respondent No.2 as being not maintainable although the petitioner had asserted in the application that Muhammad Fazil was real maternal uncle of respondent No.3, therefore, he could not be expected to be impartial. Furthermore, statement of the referee cannot be relied on since he was not a referee and he was merely an arbitrator and according to Article 33 of the Qanun‑e‑Shahadat Order, 1984 referee must be a person who is personally aware of the facts and circumstances of the case. Learned counsel has relied on the case Ghulam Farid Khan v. Muhammad Hanif Khan and others (1990 SCMR 763) to argue that there is distinction between referee and arbitrator and referee cannot decide the matter .nor any award by a referee could be made rule of the Court without providing opportunity to the parties to file objections and that the statement of the referee in the Court dated 12‑6‑2001 demonstrates that he is a party rather than being a referee. Learned counsel has further argued that the suit was filed by respondent No. 3 against the petitioner, who is her real father, after a period of eight years from the date of her Rukhsati, therefore, the suit was time‑barred; that respondent No.2 had decreed the suit in the amount of Rs.10,000 only whereas respondent No.1 had illegally enhanced the decretal amount to Rs.1,32,310 on the statement of referee. He has relied on the case Muhammad Bashir v. Qazi Bashir Ahmad (1996 MLD 674) to argue that referee could not be appointed by the Court by mere agreement of counsel for the parties as the parties were themselves present and their statements had not been recorded.

3. Learned counsel for respondent No.3 has supported the impugned judgment by pointing out that both the parties had themselves agreed to the appointment of referee and this has been conceded by the petitioner in his application dated 12‑6‑2001 and the argument that the suit was time‑barred is not sustainable since respondent No.3 had initially been married on 13‑3‑1990 with Asghar Ali from whom she subsequently' obtained divorce and thereafter she was married to Khalid Zafar on 8‑9‑1998 and her dowry articles were with the petitioner at this time; that after the second marriage of respondent No.3 she demanded the dowry articles from the petitioner but he had illegally detained her and she was recovered through warrants under section

100. Cr.P.C. after F.I. R. No.777 of 1998 was registered regarding her illegal detention at Police Station Sadar, Chiniot and she filed the suit on 30‑4‑1999 shortly after her release; that Muhammad Fazil referee is equally related to the petitioner as to respondent No.3, since he is first cousin and brother‑in- law of the petitioner while being maternal uncle of respondent No.3; that the responsibility which had been assigned to Muhammad Fazil by respondent No.1 was that he was to examine the dispute between the parties as well as the dowry articles which were allegedly lying with the petitioner and was to report to the Court as to what was the factual position and accordingly he had filed report to the Court as to the nature and amount of dowry articles which were lying with the petitioner as well as the gold ornaments which were in the possession of Muhammad Fazil (since respondent No.3 had deposited her gold ornaments with Muhammad Fazil); that the aforementioned gold ornaments are still in the possession of Muhammad Fazil who refused to hand them over till the matter is finally decided by the Court; that Muhammad Fazil had stated on Oath before the Court regarding the list of dowry articles and when the petitioner realized that trend of the Court was to decide the matter against him, he filed application for recalling the order of appointment of Muhammad Fazil; that there is nothing illegal regarding the appointment of Muhammad Fazil as referee as he was closely related to both the parties and, therefore, he was expected to have intimate knowledge of their family matters. Learned counsel has pointed out that Muhammad Fazil was appointed as referee on 26‑4‑2001 and he gave his statement on Oath in the Court on 12‑6‑2001 and there is a period of almost seven weeks between the appointment of referee and his statement before the Court and the application for removal of Muhammad Fazil was filed by the petitioner after Muhammad Fazil got his statement recorded on Oath.

4. I have heard the learned counsel for the parties and I have also gone through the impugned judgment. Respondent No. 1 has observed that Muhammad Fazil was appointed as referee with the consent of counsel for both the parties and it was agreed that appeals filed by both the parties against the judgment of respondent No.2 should be decided on the statement of Muhammad Fazil on the basis of his Oath on Holy Qur'an. It is further observed that seven weeks after his appointment, i.e., on 12‑6‑2001, Muhammad Fazil appeared in the Court and gave his statement on Oath regarding the list of dowry articles which were with the petitioner as well as the gold ornaments which were in the custody of Muhammad Fazil and after his statement the petitioner filed an application that the appeal should be decided on merits.

5. I have also perused the application filed by the petitioner for cancellation of appointment of referee, which was filed on 12‑6‑2001 after the statement of Muhammad Fazil had been recorded on Oath. The petitioner has stated therein that both the parties had mutually agreed to the appointment of Muhammad Fazil as arbitrator but Muhammad Fazil had colluded with respondent No.3 since respondent No.3, Mst. Allah Jawai, previously filed a suit against Muhammad Fazil, therefore, appointment of Muhammad Fazil should be cancelled and the appeal of the parties should be decided on merits. This application was rejected by respondent No. 1 being based on mala fide.

6. After having perused the observations of respondent No. 1 as well as the application of the petitioner, it appears that Muhammad Fazil had been appointed as referee/arbitrator by mutual consent of both the parties and the assertion that he was partial to respondent No.3, is not borne out from the application of the petitioner since it is stated therein I that respondent No.3 had also filed a suit against Muhammad Fazil, therefore, collusion between Muhammad Fazil and respondent No.3 was not likely. The application of the petitioner for removal of Muhammad Fazil was not filed immediately after the appointment of Muhammad Fazil and both parties cooperated with him for seven weeks which demonstrates that the petitioner was agreeable to the decision/Oath of Muhammad Fazil and when the same went against him, he filed application for cancellation of the appointment of Muhammad Fazil, therefore, the application is patently mala fide and, as such, the petitioner is estopped from asserting that he had not consented to the appointment of Muhammad Fazil as referee.

7. The judgments relied on by the learned counsel for the petitioner are not relevant to the facts and circumstances of this case. The application of the Civil Procedure Code, 1908 and the Qanun‑e‑Shahadat Order, 1984 in the family matters has been specifically excluded by section 17(1) of the Family Courts Act, 1964 while section 17(2) provides that sections 8 to 11 of the Oaths Act, 1873 shall apply to all proceedings before the Family Courts. According to these provisions, if any party to a judicial proceeding offers to be bound by an Oath made by the other party or by any witness in such proceeding the evidence so given shall as against the person who offered to be bound as aforesaid, be conclusive proof of the matter stated.

8. The petitioner having agreed to be bound by the statement on Oath given by Muhammad Fazil, and having cooperated in this behalf till the statement went against him, cannot be allowed to resile subsequently. Reference can be made with advantage to the judgment cited as Naimuddin v. Mst. Mah‑e‑Talat and 2 others (1984 CLC 638). 9: In view of what has been discussed above, the judgment of respondent No.1 is based on proper reasoning and there is no illegality which merits interference in Constitutional jurisdiction. This petition is, therefore, dismissed. H.B.T./M‑1381/L Petition dismissed.