SYED ZAHID HUSSAIN, J. --- A suit for specific performance was filed by Munshi Khan (the predecessor-ininterest of respondents Nos. 1 to 9), which was based upon an agreement to sell dated 28.4.1976. The suit was contested necessary issues were framed by the Trial Court. It was tried and eventually decreed vide judgment, dated 18.5.1995 to the extent of 12 Kanals of land for the consideration mentioned in the judgment. The judgment was assailed against by the petitioner, which appeal was dismissed by the learned District Judge, Narowal on 8.4.2000. This is revision petition in this context.
2. The learned counsel contends that under the agreement dated 28.4.1976 (Exh. P.5), the respondent/plaintiff could be granted decree to the extent of 1/5th share of the ownership of the petitioner, whereas the decree has been granted to the extent of his full ownership, which is illegal.
According to him even the suit was barred by limitation. The learned counsel for the respondents Nos. 1 to 9 contends that the Courts below have rightly granted decree for 12 Kanals of land in favour of the plaintiff and that the case sought to be set up before this Court now was never pleaded in the lower Courts. It is contended that the suit was well within limitation, as after the agreement to sell litigation qua the ownership and entitlement of the petitioner/defendant had remained pending, which concluded on 14.6.1987 when Writ Petition No. 256/R of 1985 was disposed of by this Court.
3. The respective contentions of the 'learned counsel have been considered. Taking first the question of limitation, suffice it to observe that the ownership and entitlement of the petitioner had been in dispute and clouded due to the litigation, which ensued soon after the agreement to sell and was concluded on 14.6.1987 when as a result of some compromise, Writ Petition No. 256/R of 1985 was disposed of on 14.6.1987 and the ownership/entitlement of the petitioner was reduced to 12 Kanals-only. Munhi Khan deceased was party in that writ petition and very much' aware of the same, The suit was fired by him on 7.9.1987, which could not be regarded as time-barred. The finding recorded on this issue by the Courts do not call for any interference.
4. Insofar as the extent of the decree to which -Munshi Khan deceased was entitled to is concerned, it may be mentioned that agreement related to land measuring 82 Kanals, 1 Marla and Munshi Khan deceased had agreed to purchase 1/5 share out of the same whereas remaining 4/5 was to be sold to others. Munshi Khan thus could sue and
(c) Constitution of Pakistan (1973)--- ---Art. 199---Muslim Family Laws Ordinance, 1961---West Pakistan Family Courts Act, 1964, S. 9--- Petitioner's suit for recovery of dowry articles was dismissed---Appeal thereagainst---Limitation-- -Void order---Question of---Writ petition in High Court---Said Judgment was passed by the Judge Family Court without written statement of respondent/defendant, therefore, it was void and illegal---As the said judgment was illegal and void, limitation would not run against the same order.
(Para 4-A)
For the Petitioner: Sardar Muhammad Akram Khan Pitafi. Respondent No. I Ex parte.
Date of hearing: 8th December, 2005.
MUHAMMAD NAWAZ BHATTI, J. --- Brief facts leading to this writ petition are that the petitioner filed three suits, (1) suit for maintenance allowance, (2) suit for recovery of dower, and (3) suit for recovery dowry articles, against respondent No. 1 before the learned Family Judge, Muzaffargarh, who decreed two suits, one for recovery of maintenance allowance and the other for recovery of dower but dismissed the suit for recovery of dowry articles vide his judgment dated 17.4.2004. The petitioner challenged the vires Of the judgment dated 17.4.2001 passed by the learned Judge, Family Court, Muzaffargarh, whereby a suit for recovery of dowry articles was dismissed. The appeal was also dismissed by the learned District Judge, Muzaffargarh, vide his judgment dated 1.6.2002. Against the ,said judgment, the petitioner has filed this writ petition.
2. Learned counsel for the petitioner has contended that the written statement to the suit for recovery of, dowry articles was not filed by the respondent/defendant Jaffar Hussain himself but was filed by the special attorney of the respondent, as such the same did not deserve consideration and reliance in this behalf is placed on Mazhar lqbal Vs. Falak Naz and 2 others PLD 2001 Lah. 495 and that the appeal before the learned District Judge, Muzaffargarh was within time as the copies of the decree-sheets of the judgment and decrees were delivered to the petitioner on 4.7.2001 but if it is admitted for the time being that the appeal was barred by time even otherwise limitation would not run against void order and in this behalf relianced is placed on Mustajab Hassan and others v. Director Trade Organisations and others 1996 CLC 1725 and, therefore, the impugned judgment, dated 17.4.2001 passed by the learned Judge, Family Court, Muzaffargarh and the judgment, dated 1.6.2002 passed by the learned District Judge, Muzaffargarh are illegal, void ab initio and against well-settled principles of equity and law.
3. Arguments heard. Record perused.
4. Perusal of the written statement to the suit for recovery of dowry articles filed by the respondent itself shows that it was filed by Jam Ghulam Rasool special attorney of the respondent/defendant Jaffar Hussain and not filed by the respondent himself. Under section 9 of the West Pakistan Family Courts Act, 1964, a defendant is bound to appear in the Family Court himself for the purpose of filing a written statement and his attendance cannot be dispensed with. Therefore, the written statement filed by the special attorney of the respondent/defendant Jaffar Hussain did not deserve consideration in the eye of law. On this proposition, I am supported by the authority cited by learned counsel for the petitioner i.e. Muzahar lqbal v. Falak Naz and 2 others PLD 2001 Lah. 495.
4-A. As far as the limitation is concerned, learned counsel for the petitioner has stated that as the decree-sheet of the decree, dated 17.4.2001 was not prepared well in time, the Copying Agency did not deliver the copy to the petitioner on 16.6.2001 and the copy of the decree-sheet of the decree, dated 17.4.2001 was delivered to the petitioner on 4.7.2001 when it was prepared. If it is admitted that the appeal before the learned District Judge, Muzaffargarh was barred by time, even though limitation would not run against the void order. Reliance in this behalf is placed on Mustajab Hassan and others Vs. Director Trade Organizations and others 1996 CLC 1725. The judgment dated 17.4.2001 was passed by the learned Judge Family Court, Muzaffargarh without the written statement of the respondent/defendant Jaffar Hussain, therefore, it was void and illegal. As the judgment dated 17.4.2001 was illegal and void, limitation would not run against the same order.
5. In view of the above circumstances, this writ petition is accepted, the judgment, dated 17.4.2001 passed by the learned Judge Family Court, Muzaffargarh and the judgment, dated 1.6.2002 passed by the learned District Judge, Muzaffargarh are set aside and the case is remanded back to the learned District Judge, Muzaffargarh to pass a fresh order after hearing both the parties and considering the observations made above.