' Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner challenges the judgment and decree dated 22-1-2002 passed by the learned Judge Family Court, Kot Addu whereby the suit for recovery of dower amount filed by respondent No,3 decree and the order dated 29-4-2002 passed by the learned Additional District Judge, Kot Addu, by which appeal filed against the said judgment and decree has been returned to the petitioner for lack of jurisdiction.
2. The brief facts of the case are that the petitioner and respondent No,3 were married with each other on 15-12-1989 and out of the wedlock three sons and one daughter were born who are alive.
Respondent No,3 filed two suits i.e, suit for recovery of dower and suit for recovery of maintenance whereas petitioner filed a suit for restitution of conjugal rights. The learned Judge Family Court consolidated all the three suits. The controversial pleadings of the parties necessitated the framing of following issues:--
(1) Whether the plaintiff is entitled to get the decree for dower as prayed for? OPP
(2) Whether the defendant is entitled to get the decree for restitution of conjugal rights? OPD
(3) Whether the plaintiff has no cause of action to file her suit? OPD
(4) Whether the plaintiff is estopped by her word and conduct to file the suit? OPD
(5) Whether the suit is not maintainable in its present form in view of preliminary objection No,1 of the written statement? OPD
(6) Relief.
Respondent No,3 appeared as P.W.1 and also produced Farooq Ahmed Farooqi as P.W.2, submitted Nikahnama and affidavits of witnesses and closed her evidence while the petitioner appeared as D.W.1 and produced Ghulam Shabbir as D.W.2. However, his right for producing the documentary evidence was struck off. All the three suits were decreed by the learned trial Court vide judgment and decree dated 22-1-2002. Against the said judgment and decree to the extent of recovery of dower amount an appeal was filed before the learned District Judge which was entrusted to the learned Additional District Judge, Kot Addu, and later on was returned to the petitioner for lack of jurisdiction vide order dated 29-4-2002.
3. Learned counsel for the petitioner contends that the learned Additional District Judge under section 14 of the Family Court Act, 1964 was empowered to hear the appeal and it was wrongly returned even if the petitioner (appellant) had requested for the return of the appeal on the ground of lack of jurisdiction. But this point should have been decided by the learned Additional District Judge before the return of the. Appeal that whether the Court had jurisdiction or not; that the learned Additional District Judge did not apply his judicial mind and returned the appeal for filing the same before this Court merely on the asking of the learned counsel for the petitioner who failed to give proper advice to his client. It is also contended that as the appeal was returned on technical reason and it was not simple withdrawal of the appeal, the order of the learned Additional District Judge being illegal may be set aside and he may be directed to decide the appeal on merits.
4. On the other hand learned counsel for the respondent states that the petitioner had himself requested for the return of the appeal and the Court was bound to return the same which order has now attained finality and even appeal was not filed after its return in this Court. It is also contended that the writ petition is liable to be dismissed as alternate remedy has not been availed.
On merits it is contended that the judgment and decree of the learned Judge Family Court is based on evidence on the record.
5. I have heard the learned counsel for the parties and also perused the impugned order of the learned Additional District Judge, Kot Addu dated 29-4-2002. There is no dispute that the suit was filed by respondent No,1 for the recovery of dower against the petitioner and the suit was decreed by the Family Court. The valuation of the appeal for the purpose of court-fee and jurisdiction was fixed at Rs,7,00,000 and the memo. Of appeal was returned for presentation of the same before the High Court vide order dated 29-4-2002. Though this order has been passed on the application of the petitioner submitted for withdrawal of the appeal on the ground that the Court lacked pecuniary jurisdiction yet the learned Additional District Judge was bound to apply correct law before passing any order on the said application. It was not an unconditional request for the withdrawal of the appeal. Had it been an unconditional request for withdrawal of the appeal, the matter would have been entirely different but in the present case when the request was made for the return of the appeal due to lack of jurisdiction the Court was bound to apply its judicial mind whether it has jurisdiction or not to further proceed in the appeal and should not return the appeal merely on the request of the learned counsel for the petitioner. Section 14(1)(b) of the Family Courts Act, 1964 provides that appeal against the decision or decree passed by the Family Court lies before the District Court and if the Family Court is presided over by the District Judge, Additional District Judge or any officer of the same status then appeal is competent before this Court under clause (a) of the said section. There is no mention regarding the maximum valuation of the amount of the decree for the purpose of appeal. However, subsection (2), clause (b) of section 14 bars filing of appeal against the decree for dower or dowry not exceeding Rs,30,000. As such the appeal was quite maintainable before the learned Additional District Judge and it could not be returned even on the request of the learned counsel for the petitioner that the Court lacked jurisdiction.
6. The petitioner had a statutory right for filing an appeal against the judgment and decree and he cannot be deprived of passing decision on the appeal on merit by the Court of competent jurisdiction or non-suited merely on technical reason as he apparently was ill-advised. The technicalities as has been repeatedly held by this Court and the august Supreme Court of Pakistan should not stand in the way of disposal of cases on merits. Reliance may be placed on the case- law reported as Ahmad Latif Qureshi v. Controller of Examination, Board of Intermediate and Secondary Education Lahore and others PLD 1994 Lah. 3, Dr. Zia Suleman Farooqi v. Punjab Public Service Commission and others PLD 1994 Lah. 55, Manager Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678, Ittefaq Foundary v. Federation of Pakistan PLD 1990 Lah. 121, Lt. Col. Mohsin Shah v. Mst. Qaseema Wahid and 4 others PLD 1995 Lah. 385 and Imtiaz Ahmad v. Ghulam Ali and 2 others PLD 1963 SC page 382. In the last one Mr. Justice B.Z. Kaikaus (as he then was) held as under:-- "I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the Bar, I do not feel much impressed with them. I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defects. Any system which by giving effect to the form and not to the substance defeats substantive rights in defective to that extent. The ideal must always be a system that gives to every person what is his."
7. For the foregoing reasons as the appeal was filed before the competent forum within time and the writ petition was also filed immediately thereafter, the order dated 29-4-2002 passed by the learned Additional District Judge, Muzaffargarh allowing return of appeal for lack of jurisdiction being against the basic law is set aside and the case is remanded to the learned Appellate Court for decision of the appeal on merits, which shall be deemed to be pending there. I have intentionally not commented upon merits so that the same may not prejudice case of either party before the Appellate Court. The parties are directed to appear before the said Court on 31-5-2004 and the decision of the appeal shall be made within one month thereafter. The original memo: of appeal attached with the writ petition shall be returned to the petitioner after placing on record photocopy thereof for its presentation before the Appellate Court in the meanwhile. The petitioner may file an application to the office for the purpose. This writ petition stands accepted with no order as to costs.