PERVAIZ INAYAT MALIK, J. Through this revision petition, the petitioners calls in question the judgment dated 4.7.2006 passed by the learned Additional District Judge, Khanewal at Mian Channu vide which he has set aside the judgment and decree dated 26.10.2005 passed by the learned Civil Judge, Mian Channu, District Khanewal and has remanded the mater for decision on merits after framing issues afresh.
2. All the above-mentioned three suits were consolidated on 16.2.2000 and from the divergent pleadings of the parties the following issues were framed: ISSUES: (1) Whether the plaintiff has no cause of action and locus standi to the present suit? OPP
(2) Whether the plaintiff has not come to this. Court with clean hands? OPD
(3) Whether the plaintiff was lessee under the defendant No. 1 and had good relations with him, whereas, the defendant No. 1 entered into an agreement to sell for the disputed property with defendant No. 2 and agreement was executant and defendant No. 1 received Rs. 71,000/- from the defendant No. 2 Muhammad Fazal as earnest money and the plaintiff forcibly got executed an agreement to sell regarding the disputed property in his favour by threatening him to murder and receipt of earnest money of Rs. 20,000/- in favour of the plaintiff is forged and fictitious? OPD-1.
(4) Whether, the plaintiff Sibghat Ullah is entitled to the decree for specific performance of agreement to sell dated 25.8.1999 regarding the disputed property as prayed in his plaint? OPP
(5) Whether the plaintiff Muhammad Fazal is entitled to the decree for specific performance of agreement to sell dated 18.1.1999 as prayed for in his plaint if so on what terms? OPP
(6) Whether the defendant No. 1 Abdul Aziz .Is entitled to the decree for cancellation of agreement to sell that the present plaintiff Sibghat Ullah as prayed for in his plaint? OPP.
(7) Relief.
3. Respondent No. 1 was treated as plaintiff in above-mentioned suits whereas the petitioner and respondent No. 2 were treated as defendants and the evidence was also jointly recorded.
4. Both the parties led their respective evidence oral as well as documentary. The respondent No. 1 produced PW1 to PW-5 and also documentary evidence Ex.P.1 to Ex.P.7. Whereas the respondent No. 2 Abdul Aziz produced evidence DW-1 to DW-6 and also produced documentary evidence Ex.D-1 to Ex.D-5.
5. After hearing the parties, the learned .Trial Court was pleased to decree the suit filed by the petitioner as well as suit for cancellation of agreement to sell dated 25.8.1999 in favour of respondent No. 2 and dismissed the suit for separate performance of agreement to sell filed by the respondent No. 1 vide consolidated judgment and decree dated 26.10.2005, who feeling aggrieved thereof preferred an appeal. Learned Appellate Court after hearing the parties, vide judgment dated 4.7.2006 set aside the judgment and decree passed by the learned Trial Court and remanded the case, with a direction to frame the necessary issues , record the evidence and then decide the matter afresh, which is being assailed through this revision petition.
6. This petition was admitted to regular hearing on 8.4.2008.
7. It is inter alia contended by the learned counsel for the petitioner that the learned Appellate Court has proceeded to set aside the well-reasoned judgment and decree passed on the learned Civil Court and has also failed to take notice of the vitally important fact at the time of framing of issues and even till the time of judgment and decree to objection was ever raised by the respondent nor any efforts were made to get any additional issues framed; that the learned Appellate Court proceeded to pass the impugned judgment and decree on technicalities and has not appreciated the evidence on record in its true perspective. Adds that the issues which have been directed to be framed by the learned Appellate Court are already there on the record and the learned Civil Court has very exhaustively dealt with all such issues and lastly it is contended that it is a case of non-reading and misreading of evidence besides illegal and arbitrary exercise of jurisdiction and that the learned Appellate Court fell in error by remanding the case without any justification. It is thus prayed that the judgment and decree dated 4.7.2006 passed by the. Learned Appellate Court may be set aside and that of the learned Trial Court dated 26.10.2005 be restored.
8. Conversely the learned counsel for the respondent No. 1 vehemently opposes the petition and submits that against remand order revision was not competent and that the impugned judgment and decree passed by the learned Appellate Court is perfectly legal and calls for no interference in the revisional jurisdiction. Reliance is placed upon 1985 SCM R 714, 1988 SCM R 1703 and 1981 CLC Karachi 752, in support of his contentions.
9. Arguments heard. Record perused.
10. I have given my anxious considerations to the submissions made at bar by the learned counsel for the parties and with their able assistance have gone through the record minutely.
11. In the impugned. Judgment I find that the learned Appellate Court himself has incorporated issues framed by the learned lower Court and perhaps if escaped his notice that the issues regarding allegation of forcible execution of agreement to sell by the.Plaintiff is already there. I also find that the learned- lower Court in its detailed judgment, in para 15, has dealt with this issue with solid reasons and which findings are well-founded. The other points which have been made basis by the learned Appellate Court for passing the judgment impugned have also been taken care of by the learned lower Court. I feel that the learned lower Appellate Court has also not taken care of the interim order dated 16.9.2000 available on the record of lower Cdurt vide which all the three suits were directed-to be consolidated. In the presence of the parties and issues were framed on the same day. This order even finds mention in the judgment of the learned Civil Court.
12. I am, therefore, of the considered view that the judgthent and decree passed by the learned lower Court is well-reasoned perfectly in accordance with facts and law of the case, which has been disturbed, by the learned Additional District' Judge through the impugned judgment and decree without any lawful justification.
13. Resultantly, this petition is allowed, impugned judgments dated 4.7.2006 passed by the learned Additional District Judge/Appellate Court is hereby set side and that of the learned Civil Judge dated 26.10.2005 is restored. No order as to costs.
Civil revision allowed.
4. It is inter alia contended by Mr. Muhammad Ramzan Khalid Joyia, the learned counsel for the petitioner that the learned Trial Court had assumed the jurisdiction not vested in it under the law; that in view of the very contents of the plaint itself there is an admission on the part of respondent No. 2 that she had been paid Hal-ul-Mahar, therefore, suit before the learned Judge Family Court was not competent; that since there is a dispute of ownership, therefore, the learned Civil Court has the exclusive jurisdiction; that the jurisdiction assumed by the learned Judge Family Court is in uttered disregard of provisions of Section 5 of the Family CoUrts Act (XXXV of 1964); that the - petitioner is the owner in possession of the house in question, therefore, cannot be deprived from her valuable property. Lastly contends that the suit filed by respondent No. 2 was collusive with respondent No. 3, therefore, should have been dismissed on this score alone; adds that in any case the controversy cannot be resolved without framing proper issue on the subject; places reliance upon PLJ 2001 Peshawar 30.
5. Conversely Mr. Muhammad Mehmood Ashraf Khan, the learned counsel for the contesting respondent No. 2 vehemently controverts the submissions made at bar by the learned counsel for the petitioner and with vehemence argues that this was not at all a dispute which could be adjudicated upon by a Court of general civil jurisdiction and that the matter involved recovery of Haq-ul-Mahar, therefore, in view of provisions of. Section 5 of the West Pakistan Family Courts Act (XXXV of 1964) 'exclusive jurisdiction vests in the learned Family Court therefore, the suit filed by respondent No. 2 before the learned Judge Family Court is competent. Reliance is placed upon 1997 SCM R 1122 wherein the Honourable Supreme Court of Pakistan in somewhat similar circumstances declined to interfere in the concurrent findings arrived at by the Courts below by observing that the Family Court in view of provisions of Section 5 of the West Pakistan Family Courts Act (XXXV of 1964) was empowered to entertain and decide such suits including the one for recovery of immoveable property given as dower to the were. The learned Counsel for the respondent has also referred to some judgments of this Court wherein above principle of law laid down by the Honourable Supreme Court of Pakistan was respectfully followed.
5. Arguments heard. Record perused.
6. The controversy revolves around interpretation of Section 5 of the West Pakistan Family. Courts Act (XXXV of 1964) which is reproduced as under:- Jurisdiction. (1) Subject to the provisions of the Muslim Family Laws, Ordinance, 1961, and the Conciliation Courts Ordinance, entertain, hear and adjudicate upon matters specified in {Part 1 of the Schedule). {(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), the Family Court shall have jurisdiction to try the offences specified in Part II of the Schedule, where one Of the spouses is victim of, an offence committed by the other.
(3) The High Court may with the approval of the Government, amend the Schedule so as to alter, delete or and any entry thereto).
7. Judgment relied upon by Mr. Muhammad Khalid Joiya, Advocate for the petitioner PLJ 2001 Peshawar 1 Haji Muhammad Abbas v. Mrs. Naila Taranum Jamshed and 4 others has no relevance with the case in hand principle of law laid down here is in respect of powers of High Court under Section 561-A, Cr.P.C., which are inherent, unbridled and were enough so as to arrest and rectify any abuse of process of Court and to make such orders as may be necessary to secure the ends of justice. Secondly in the referred case in view of the peculiar circumstances matter was referred back to the authorities concerned for holding proper inquiry in the matter. I have not been able to understand as to how this case is relevant to one in hand.
8. The judgment referred to supra by Mr. Muhammad Mahmood Ashraf Khan, the learned counsel for the respondent cited as 1997 SCM R 1122, which has also been relied upon by the learned lower Court, is fully attracted in view of peculiar facts and circumstances of the case and resolves the controversy, para No. 3 whereof is reproduced 'here under the favour of convenience:- "We have considered the submission made by the learned counsel for the parties carefully. We do not agree with the learned counsel for the petitioner. A plain reading of Section 5 of the Family Courts Act, 1964 (W.P. Act XXXV of 1964) will show that the Judge Family Court alone was competent to entertain a suit for the recovery of the property given as dower to the were at the time of marriage. Learned counsel has failed to quote any provision of law restraining Judge Family Court to entertain suit for the recovery of immovable property given as dower to a were. The three Courts below have believed the oral evidence as well as Kabinnama Exh.P.1 and Nikahnama Exh.P.3.
Learned counsel has failed to point out any misreading or non-reading of evidence by the Courts below. The Judge Family Court has not flouted any relevant provision of law either learned Additional District Judge and the High Court as well were fully justified in dismissing the appeal and the Constitution petition respectively.
Leave to appeal is, therefore, refused and the petition is dismissed. Leave refused."
9. The afore-stated provisions of law and the judgment of Honourable Supreme Court of Pakistan fully clinches the matter, I am, therefore, of the considered view that the suit filed by respondent No. 2 Mst. Parveen Kausar for possession of the house given to her in consideration of dower is competent before Family Court.
10. Resultantly the impugned order is upheld, with a direction to the learned respondent No. 1 to proceed in the matter further in accordance with law.
11. Since it Is a family matter pending for the last about four years, therefore, the learned Judge Family Court is further directed to decide the suit expeditiously preferably within a period of four months.
12. With these observations, this petition /being devoid of any merits, is hereby dismissed in limine, with no order as to costs. .