' ASAD MUNIR, J.--- As appears from the record, on 14-6-2003 respondent No,1 filed against the petitioner a family suit for the recovery of gold ornaments, weighing 20 tolas, out of which 10 tolas were stated to have been given by her parents while 10 tolas were claimed to have been gifted to her by the petitioner at the time of marriage. On 24-9-2003, the petitioner filed his written statement wherein an objection was taken to the effect that the Judge Family Court had no jurisdiction to try the suit as it was not a family suit. Accordingly, a preliminary issue was framed which was decided in favour of the petitioner vide order dated 17-11-2003, passed by the learned Judge Family Court, Depalpur, District Okara, who held that the suit was, of a civil nature and directed respondent No,1 to pay the court fee of Rs,12,000. In compliance, an amended plaint after affixation of the requisite court-fee was filed on 4-12-2003 by respondent No,
1. "In the Court of the Civil Judge", who had earlier acting as Judge Family Court had passed order dated 17-11-2003. After filing his written statement on 6-2-2004, the petitioner on 12-7-2006 filed an amended written statement wherein it was quite surprisingly pleaded that the Civil Judge had no jurisdiction over the suit as it was a family suit. Vide judgment and decree dated 8-2-2010, the learned Civil Judge dismissed the suit after over-ruling the petitioner's objection as to the jurisdiction of the Civil Judge to try the suit. An appeal, filed by the respondents, was allowed vide judgment dated 15-7-2010, passed by learned Additional District Judge, Depalpur and the suit was decreed to the extent of 10 tolas of ornaments gifted by the petitioner. The legality of the judgment and decree dated 15-7- 2010 has been questioned through this writ petition.
2. Learned counsel for the petitioner has firstly contended that the appeal before the learned Additional District Judge was 'not competent as it was a civil appeal whereon court fee had not been affixed but it was treated as a family appeal even though it had been tiled against the judgment and decree dated 8-2-2010, passed by the Civil Judge and not by the Judge Family Court. It is secondly contended that there was no evidence to support the finding that 10 tolas of gold ornaments given by the petitioner were in the possession of the petitioner.
3. I have given due consideration to the contentions raised by the learned counsel for the petitioner and have also perused the available record.
4. There is no doubt that the Judge Family Court's order dated 17-3-2003 was void ab initio as the suit filed by respondent No,1 was clearly a family suit in view of section 5 of the West Pakistan Family Courts Act, 1964 ("the Act'), read with' Entry No,9 of Part-I of the Schedule of the Act. Section 5 of the Act provides that a Family Court has jurisdiction to "entertain, hear and adjudicate upon matters specified in Part-I of the Schedule" while Entry No,9 of Part-I of the Schedule specifies personal property and belongings of a wife" in respect of which a family suit can be brought.
Admittedly, the petitioner gifted 10 tolas of gold ornaments to respondent No,1 at the time of the marriage. This is also supported by the entry at serial No,17 of the nikah nama dated 2-3-2001. The said gold ornaments, being the property of respondent No,1, could be recovered by her through filing a family suit which falls within the purview of Part-I of the Schedule of the Act. Thus, the trial court had wrongly assumed jurisdiction as a Civil Judge after ordering respondent No,1 to affix the court-fee on the plaint and convert her family suit into an ordinary civil suit. While doing so, it has to be said that the learned Judge Family Court, remained totally oblivious of the provisions of Part-I of the Schedule of the Act. It also appears that for lack of proper legal advice, the petitioner did not agitate the matter any further and complied with the illegal order of the trial Court. On the basis of this illegal order, the suit was proceeded with and decided as a civil suit when it was by all means a family suit. In the circumstances, no exception can be taken to the impugned judgment as the illegality committed by the learned Civil Judge was undone by the learned Additional District Judge, who entertained and decided the appeal as a family appeal requiring no court-fee to be affixed thereon.
5. Strangely enough, when the family suit was filed the petitioner took the plea of lack of jurisdiction of the Judge Family Court but when the family suit was converted into a civil suit, the petitioner took a somersault and pleaded that the Civil Court had no jurisdiction as the suit was a family suit.
Once again the petitioner has changed his stand but he is estopped to do so and cannot revert to his earlier stand that the suit is a civil suit in order to question the filing and disposal of respondent No,l's appeal as a family appeal.
6. As regards the issue of 10 tolas of gold ornaments which have been held to be recoverable by respondent No,1, it may be said that respondent No,1 asserted in her evidence that the 10 tolas of gold ornaments were not in her possession but were in the possession of the petitioner. The petitioner was not able to produce any evidence to rebut the stand of the respondent that the gold ornaments were not with her but were with the petitioner. It is to be noted that there is no dispute that respondent No,1 was gifted 10 tolas of gold ornaments by the petitioner but there was'a controversy as to whether the said gold ornaments were in possession of the petitioner or otherwise. However, the piece of evidence which goes in favour of the respondent is the statement of petitioner's witness, DW-2, who did not state that the gold ornaments were with respondent No,1 but stated in his examination-in-chief that he did not know in whose possession the gold ornaments were lying. The aforesaid testimony of DW-2 is crucial and tips the balance in favour of the finding that the gold ornaments are with the petitioner.
7. In view of the foregoing discussion, no illegality or irregularity has been found in the impugned judgment/decree to call for this court's interference in the exercise of its constitutional jurisdiction.
Accordingly, there is no merit in this writ petition, which is dismissed in limine.