' MUHAMMAD JEHANGIR ARSHAD, J.--- This writ petition has been filed to call in question the judgment, dated 26-11-1997 passed by learned Judge, Family Court, Ahmadpur East/respondent No,2 whereby suit for recovery of dower filed by the petitioner was dismissed and also the judgment of learned Additional District Judge/respondent No,1 dated 6-11-1998 whereby appeal of the petitioner against the above mentioned judgment of the learned trial Court, was partly allowed in the following facts and circumstances:- ' The petitioner filed a suit for recovery of dower viz. Residential House No,554/55-B.V situated in Mohalla Abbasia, Ahmadpur East asserting in the plaint that earlier the said property was owned by Ghulam Yasin father of Khalid Mehmood respondent No,3 who gifted the same to respondent No,3 his son through deed of Tamleek dated 25-9-1994 (Exh.P.1) and on the same day the respondent No,3 gifted away the said house to the petitioner through Kabeen Naina (Exh.P.3) as well as in terms of Entry No,14 of the Nikah Nama dated 9-6-1994 (Exh.P.2)' in lieu of dower. The possession of the said house was also delivered to the petitioner. Later on as the 'relations between the parties became strained, hence both the respondents Nos.3 and 4 starting denying the right of the petitioner over the said house by contending that same was in-fact the property of Mst. Safia Begum respondent No,4, mother of Khalid Mehmood respondent No,3 because the same already stood alienated to her by Ghulam Yasin vide document of Tamleek executed on 28-4-1993 prior to the execution of Exh.P.1 and Exh.P.3. The said suit was contested by respondents Nos.3 and 4 inter alia contending that neither Khalid.Mehmood respondent No,3 was owner of the said house on the day documents Exh.P.1 and Exh.P.3 were executed and Nikah between the parties took place through Exh.P.2 nor the suit was maintainable and that in lieu of the disputed house Khalid Mehmood respondent paid Rs,1,00,000 to the petitioner as a price of the said house. Along with the present suit, a suit for recovery of maintenance as well as suit for restitution of conjugal rights were also filed and the learned trial Court on 22-4-1997 framed consolidated issues, the relevant Issues Nos.1 and 3 are as under:--
(1) Whether the suit house as per para. No,1 of the plaint and golden ornaments weighing 10 Tolas and Rs,1,00,000 were fixed as plaintiff prompt dower and the defendant did not pay it to the plaintiff? OPP
(2) Whether the defendant has paid Rs,1,00,000 ornaments valuing Rs,60,000 and cash amount of Rs,50,000 to the plaintiff in lieu of dower? OPD
2. On the conclusion of trial, the learned trial Court vide judgment dated 26-11-1997 decided both the above mentioned issues against the petitioner and dismissed her suit. Against said judgment of the learned trial Court, the petitioner filed an appeal which was partly allowed by the learned Additional District Judge on 6-11-1998 holding that although Khalid Mehmood respondent No,3 was not owner of the said house at the time of marriage which earlier stood transferred in favour of his mother Mst. Safia Begum through document dated 28-4-1993 yet he was bound to pay its price and that his contention that he had already paid the cash amount to her in lieu of the price of said house as dower, was not established. Since the judgment of the learned Additional District Judge with regard to the relief is silent, hence, this writ petition has been filed, whereas the respondents have not filed any writ petition challenging the findings of the learned Additional District Judge to the above extent and thus, the same attained finality qua liability of respondent No,3 Khalid Mehmood for the payment of price of the house.
3. It is argued by learned counsel for the petitioner that although transfer of house in dispute by Ghulam Yasin father of respondent No,3 in favour of his wife respondent No,4 through Tamleek Exh.P.3 was a collusive transaction and the said document was fictitiously prepared during the pendency of litigation in order to deprive the petitioner of her right qua the house in dispute, yet the liability of respondent Khalid Mehmood for payment of the price equal to the price of said house still remains intact and while accepting the appeal of the petitioner the learned Additional District Judge should have directed respondent No,3 to pay the price equal to the valuation of the house in dispute.
4. On the other hand, learned counsel for respondents has not been able to satisfy this Court that respondent No,3 Khalid Mehmood after admitting transfer of disputed house to the petitioner in lieu of dower and also after decision of the learned Additional District Judge holding that as alleged-by respondent No,3 that he had already paid cash price in lieu of value of the house, having not been established, the respondent No,3 was not liable to pay the price of the dispute house equivalent to its value. The learned counsel for the respondents however, argued that as the learned Additional District Judge while deciding the said issue to the extent of house in dispute did not determine its value nor burdened the respondent No,3 with the price. Equivalent to its value, the only inference would be that the learned Additional District Judge did not deem it proper to hold so.
5. I have considered the arguments of learned counsel for the parties and perused the record with their assistance.
6. The learned Additional District Judge adopted a very correct approach while deciding the issue qua house in dispute in favour of the petitioner but at the same time fell into error/omission by not determining the price of the house equivalent to its value. It is an established principle of law that a person transferring property under a valid contract also impliedly binds himself to indemnify the transferee of the said property against any loss sustained by the transferee to contract due to some defective title and a right to indemnify exists in every contract irrespective of any express clause to this effect. The case PLD 1994 SC 294 is also an authority to this effect. Since Khalid Mehmood respondent No,3 has not challenged the findings of the learned Additional District Judge qua house in dispute and the said findings have attained finality and is binding on said respondent No,3, hence, omission on the part of the learned Additional District Judge by not determining the price of the house equivalent to its value, may be termed as an accidental slip and same does not render the judgment of the learned Additional District Judge either redundant or ineffective. The illegality/ irregularity so committed by the learned Additional District Judge can be cured/rectified by this Court while sitting in constitutional jurisdiction by holding that in view of the admission by respondent No,3 regarding transfer of the house in dispute to the petitioner in lieu of dower at the time of marriage and that decision of the two Courts below holding that house in dispute in fact stood transferred in favour of respondent No,4 mother of respondent No,3 through Tamleek Exh.P.3.
(though apparently collusive), the respondent No,3 cannot be relieved of his liability to pay the price of the disputed house equivalent to its value, because non-rectification of such illegality/irregularity would amount to perpetuating retention of illegal gain by respondent or injustice done to the petitioner by the deceitful act of respondent, as held by the Supreme Court of Pakistan in the case Secretary to the Government of the Punjab, Forest Department, Punjab, Lahore through Division Forest Officer v. Ghulam Nabi and 3 others PLD 2001 SC 415 and PLD 1997 SC 304.
Further it is also an established principle of law that Tribunals should always decide the matters rightly and if the subordinate Tribunal makes an error of law in passing the order the same goes outside the jurisdiction and such an order being erroneous on point of law can be quashed in writ jurisdiction, as held by Honourable Supreme Court of Pakistan in the case Utility store Corporation v. Punjab Labour Appellate Tribunal PLD 1987 SC 447.
7. The upshot of above discussion is that this writ petition is allowed and by modifying the impugned judgment of the learned Additional District Judge dated 6-11-1998 accepting Appeal No,314 of 1998 of the petitioner against the judgment and decree of the Judge Family Court dated 26-11-1997 dismissing suit for dowry, it is declared that petitioner would be entitled to recover the price of the house equivalent to its value as it is today, from Khalid Mehmood respondent F No,3, to be determined by the Executing Court during execution proceedings.