' IFTIKHAR HUSSAIN BUTT, J.--- This appeal has been directed against the decisions and decrees passed by Judge, Family Court, Muzaffarabad on 25-2-2005, whereby two decrees have been passed in favour of the respondent in two separate suits filed by her.
2. The brief facts forming the background of the instant appeal are that Mst. Babra Rahim, respondent herein, filed two different suits one for recovery of dower amounting Rs,1,50,000 and other for recovery of dowry before Judge, Family Court, Muzaffarabad on 2-12-2004 and 8-1-2005 respectively. It was contended in both the suits that Mst. Babra Rahim, respondent was in lieu of dower amounting Rs,1,50,000 which has yet not been paid to the respondent. She further averred that the ornaments which were given to her at the time of Rukhsati, were snatched away by the appellant soon after her Rukhsati. She also alleged that during the period of population appellant treated her with cruelty and also snatched away her one year old minor son.
3. In other suit it was contended that at the time of Rukhsati her father gave her dowry worth Rs,1,16,000 along with other articles. Soon after Rukhsati the appellant treated her with cruelty, and ousted her from his house after snatching her minor son. She has filed an application for the custody of her minor son. She further averred that her dowry is in possession of the appellant who wanted to damage the dowry articles.
4. Both the ,suits were resisted by the appellant. In suit for recovery of dower it was contended that the ornaments, worth Rs,4,00,000 were given to the respondent at the time of marriage which are still in her possession. It was further averred that if the dower amounting Rs,1,50,000 is deducted from the price of ornaments then the respondent is still bound to handover the remaining ornaments worth Rs,2,50,000. The other allegations levelled in the plaint were refuted by the appellant and it was also claimed that respondent has got no cause of action. The appellant prayed that the suit of the respondent May be dismissed and after deducting the dower amount the remaining ornaments Of the respondent be handed over to him.
5. In suit for recovery of dowry While raising preliminary objections it was contended that the plaint has neither been signed by the plaintiff-respondent nor by her counsel. Similarly the schedule for the witnesses has also not been signed by the plaintiff. It was also averred that the Vakalatnama has not been signed by the Advocates of the plaintiff, therefore, the suit of the respondent is not maintainable and liable to be dismissed in limine. The other allegations levelled in the plaint were refuted by the appellant and it was alleged that respondent has got no cause of action and if she returns the ornaments given by the appellant then the appellant is ready to return her dowry.
6. On 25-2-2005, the pre-trial proceedings were initiated and the statements of the spouses were recorded by the Court below. In the light of the statement of the appellant-defendant, the learned Judge, Family Court reached the conclusion that the appellant has admitted the claim of the respondent, consequently, decrees for dower amounting Rs,1,50,000 and recovery of dowry were passed in favour of the respondent against the appellant vide the 'decisions dated 25-2-2005.
Hence this appeal.
7. In support of the appeal, Syed Mujahid Hussain Naqvi, the learned counsel for the appellant vehemently argued that the offer of the appellant to pay the dower amount and return the dowry was conditional but the Court below committed an illegality while passing the impugned decision and decree in a hasty manner. The learned counsel pointed out that in, the light of the pleadings of the parties and the preliminary statements, it was incumbent upon the Court below to frame issues as required by section 10(4) of the Azad Jammu and Kashmir Family Courts Act, 1993 (hereinafter to be referred as the Act). The learned counsel also contended that the appellant has challenged the appointment of learned Judge, Family Court as she then was, therefore, the learned Judge, Family Court passed the decrees against the appellant on account of personal malice and rancour. The learned counsel further maintained that the case may be remanded and the Court below be directed to frame the necessary issues in the light of the pleadings of the parties. In support of his arguments the learned counsel referred to me the following authorities:-
(1) PLD 1978 SC (AJ&K) 37; (2) PLJ 2000 SC (AJ&K) 30 and (3) 2004 PCr.LJ 433.
8. On - the contrary, Sardar Pervaiz Akhtar Niazi, the learned counsel for the respondent, submitted that the careful perusal of the written statements and the preliminary statements of the appellant shows that he has admitted the claim of the respondent, therefore, no point at issue was available and it was not at all necessary for the Court below to proceed further in the suits because the appellant had admitted the claim of the respondent. The learned counsel further contended that keeping in view the admitted facts and circumstances of the case there was no option left for the Court below except to pass the impugned decisions and decrees. In support of the contention, reliance was placed upon 1998 SCR 296.
9. I have very carefully attended to the submission made at the Bar in light of the material available on record. A close scrutiny of the pleadings of the parties makes it crystal clear that written statements filed by the appellant do not come in the purview or ambit of admission of the claim of the. Respondent. The appellant has categorically averred in his written Statements that in case the respondent returns back his ornaments then he is ready to pay her dower and also return her dowry otherwise after deduction of the price of the ornaments, remaining amount or jewellry may be given to him. In this manner the conditional written statements cannot be described as admission, rather it was incumbent upon the Court below to strike issues in the light of the pleadings of the parties and thereafter to proceed in accordance with law, but the Court below fell in grave error while recording a brief and sketchy order in a hasty manner which IA cannot be maintained.
10. There is another aspect of the case which creates more difficulty for the respondent i,e, the Court below has also ignored the preliminary objections raised by the appellant in his written statement wherein it was contended that in absence of the signature of the plaintiff and her counsel upon the plaint, on the schedule of witnesses and non-availability of the signatures of the Advocates, of the respondent on Vakalatnama, the suit filed by the respondent is not maintainable.
On this account it is also a fit case where the Court should have framed the issues and fixed a date for evidence.
11. Section 10(3) of the Act postulates that "at the pre-trial hearing, the Court shall ascertain the points at issues between the parties and attempt to effect a compromise or reconciliation between the parties, if this be possible". Under section 10(4) of the Act "if no compromise or reconciliation is possible, the Court shall frame the issues in the case and fix a date for evidence". In this view of the matter the Court below has failed to follow the mandatory provisions of the Act, mentioned above.
12. Pursuant to the above discussion, the appellant has not admitted the claim of the respondent in his written statements therefore, the contention of the learned counsel .Is devoid of any force and an authority referred to by him does not render any help to him. 'So far as the case-law cited by the learned counsel for the appellant is concerned, does not need any detailed analytical survey because of distinct facts.
13. For the reasons listed above, I accept this appeal, set aside the decisions and decrees dated 25- 2-2005 and remand the cases to the Court below with the direction that after framing the necessary issues the Court shall proceed further in accordance with law.