2022 PLP 1982 (MLD)

FAISAL ZAMAN KHAN, J.

Through this petition, consolidated judgment and decrees dated 16.02.2015 passed by respondent No.3 has been assailed, by virtue of which, an appeal filed by respondents Nos.1 and 2 has been accepted and the consolidated judgment and decrees dated 22.10.2013 passed by respondent No.4 has been modified.

2. The facts giving rise to the present petition are that marriage was solemnized between the petitioner and respondent No.1 on 22.04.2010. Out of the wedlock, respondent No.2 was born. Due to altercation between the spouses, a suit for recovery of maintenance allowance, possession of house, gold ornaments as well as dowry articles was filed by respondents Nos.1 and 2 against the petitioner. As a counterblast, a suit for restitution of conjugal rights was filed by the petitioner against respondent No.1. Respective written statements were filed by the parties whereafter the suits were consolidated and out of divergent pleadings of parties, 06 consolidated issues were framed; evidence pro and contra was led, whereafter through consolidated judgment and decrees dated 22.10.2013, the suit filed by respondent Nos.1 and 2 was decreed however the relief of possession of house was refused whereas the suit filed by the petitioner was dismissed. Feeling aggrieved, both the parties preferred their respective appeals which were decided through a consolidated judgment and decrees dated 16.02.2015 and respondent Nos.1 and 2 were also held entitled to possession of house, hence this petition.

3. At the outset of hearing, learned counsel for the petitioner submits that he only assails the impugned judgment and decrees to the extent of delivery of possession of a house therefore the remaining judgments and decrees are upheld.

4. In the above backdrop, learned counsel for the petitioner submits that respondent No.1 was not entitled to possession of the house as mentioned in column No.16 of the Nikahnama as in lieu of dower that house was to be given to her and since she has sought Khula therefore as Badl-e-Khula she has to surrender the same thus the impugned consolidated judgment and decrees is not in accordance with law. Places reliance on judgment reported as Syed Nadeem Raza through Attorney General v. Mst. Amna-Tuz-Zahra and 2 others [2011 CLC 726] and an unreported judgment passed in W.P. No. 2111/2013 titled "Wasif Ali, and others v. Mrs. Fakhra Jabeen and others"

5. Conversely, learned counsel for respondent Nos.1 and 2 submits that the entry made in column No.16 of the Nikahnama was not with regard to dower therefore petitioner was bound to handover the possession of the house thus the impugned consolidated judgment and decrees have rightly been passed.

6. Arguments heard. Record perused.

7. The sole question which requires determination by this Court is as to whether respondent No.3 has rightly ordered the petitioner to deliver possession of the house to respondent No. 1 as contemplated in column No.16 of the Nikahnama.

8. A perusal of the available record would show that Nikahnama was produced by respondent No.1 as Exh.P3 and from the perusal of column No.16 of the Nikahnama, it is clear that it has been undertaken by the petitioner AS A SPECIAL CONDITION that a house (details of which have been mentioned in the said column) will be given to respondent No.1. While filing his written statement, the said stipulation has been acknowledged by the petitioner in reply to paragraph No.3 of the plaint (on merits) however his case is that he has delivered possession of one room to respondent No.1 which is sufficient compliance of the said column.

9. As discussed above, the stance taken by the petitioner in his written statement is that he has delivered the possession of one room to respondent No.1 which is sufficient compliance of the said column/undertaking/special condition however if this stance is read in juxtaposition with column No.16 of the Nikahnama, it is clear and obvious that it was undertaken by the petitioner that a HOUSE will be delivered to respondent No.1 (and not a room) thus the special condition as contemplated in column No.16 in Exh.P3 has not been fulfilled, hence respondent No.3 has rightly ordered the petitioner to handover the possession of the house to respondent No.1.

10. As regards the argument of the learned counsel for the petitioner (which although is inconsistent to what has been claimed by him in the written statement) that possession of the house cannot be ordered to be delivered to respondent No.1 as the house mentioned in column No.16 is given to the respondent No.1 in lieu of dower and since respondent No.1 has sought dissolution of marriage through a suit on the basis of Khula, which has been decreed, thus as Badl-e-Khula, since she has to forego the dower therefore no decree for possession of the house could be passed in favour of respondent No.1, the said argument is misconceived for the reason that a perusal of Exh.P3 would show that column Nos.13 to 15 pertain to DOWER, whereas column No.16 refers to a SPECIAL CONDITION set up while executing the Nikahnama, which is a contract between the spouses.

11. In the above backdrop, this Court is of the view that column Nos.13 to 15 and column No.16 are independent and not interdependent as they cater for two different undertakings between the spouses while executing the Nikahnama, thus the same cannot be read in conjunction. Through column Nos.13 to 15 reference is made to dower i.e. what will be the dower, whether it is prompt or deferred and whether some of the dower has been paid at the time of marriage, whereas column No.16 is an independent condition setup at the time of marriage as it refers to a special condition undertaken by the spouses while entering in the marital bond through a Nikahnama.

12. In the above background for enforcement of the special condition as set up in column No.16, either of the spouses can approach the family court keeping in view the Schedule attached to the West Pakistan Family Courts Act, 1964, which in the case in hand respondent No. 1 has done.

13. The above argument of the learned counsel for the petitioner is also falsified from the fact that a suit for dissolution of marriage on the basis of Khula was filed by respondent No. 1 against the petitioner which was decreed vide judgment and decree dated 22.10.2013 and as Badl-e-Khula, respondent No. 1 has already been asked to surrender 2 tolas gold ornaments and since the said decree has not been assailed by the petitioner thus even if column No.16 is construed to be with regard to dower (which it does not), even then petitioner is bound to fulfil his undertaking as Badl-e-Khula has already been given to him.

14. It shall also be important to mention here that in the previous round of litigation, in which parties entered into a compromise, the entry made in column No.16 of Exh.P3 has been acknowledged by the father of the petitioner who also made a statement before the court that house mentioned in column No.16 belongs to him and he will transfer the same to respondent No.1. (See page 87 of the case file).

15. As regards the judgments cited by the learned counsel for the petitioner, the same being outcome of different facts and circumstances are not applicable to the case in hand. Moreover in those judgments column No.16 which has been discussed is worded as under: Whereas in the case in hand column No.16 is worded as under:

16. For what has been discussed above, since the learned counsel for the petitioner has not been able to highlight any jurisdictional defect or procedural impropriety in the impugned consolidated judgment and decrees, therefore, no ground for interference is made out, as a sequel to which, this petition fails and the same is dismissed. MHS/S-70/L Petition dismissed.