' ASAD MUNIR, J.---Facts relevant for a disposal of this petition are that by means of nikah nama dated 18-4-2004 the marriage between petitioner No,1 and respondent No,1 was contracted in consideration of the haq mahr of gold ornaments, weighing 5 toles, out of which gold ornaments, weighing 3 tolas, were received at the time of marriage while the remaining 2 tolas of gold ornaments were to be given later. The marriage was contracted in the wake of an Iqrar Nama dated 13-4-2004, executed by petitioner No,1' s father, petitioner No,2, that he would pay Rs,200,000 to respondent No,1 in case petitioner No,1 divorced her or contracted a second marriage without her permission or failed to transfer 4 kanals and 10 marlas of land to her. In furtherance of the Iqrar Nama dated 13-4-2004, petitioner No,2 also executed a promissory note dated 13-4-2004 undertaking to pay Rs,200,000 to respondent No,1. Somehow, the said marriage turned out to be short-lived as it ended in July, 2004 when the petitioner No,1 pronounced talaq on respondent No,1.
Thereafter, on 23-9-2004, respondent No,1 filed a suit for recovery of dowry articles, valued at Rs,70,300 along with gold ornaments of two tolas as dower as well as Rs,200,000 agreed vide Iqrar Nama dated 13-4-2004 and promissory note dated 13-4-2004. During the pendency of the suit before the Judge Family Court, Shorkot, the parties on 23-6-2005 through statements recorded before the Family Court agreed that Noor Muhammad son of Karam be appointed as a referee and his decision on oath would be binding on the parties. In view of the agreement of the parties, Noor Muhammad was appointed as a referee whereafter on 17-11-2005 he appeared as a witness (CW1) and submitted his statement in writing dated 5-9-2005, described as Salsi Faisala, in favour of respondent No,1. It was stated in the said Salsi Faisala that the referee had heard the parties and that petitioner No,2 had acknowledged the dowry articles, the nikah nama dated 18-4-2004 Iqrar Nama and promissory note which had also been acknowledged by the marginal witnesses. The referee was also cross-examined by the petitioners who on 4-9-2005 filed an application objecting to the Salsi Faisala and sought its cancellation on the ground that it was made without taking into consideration the version of the petitioners. Vide judgment and decree dated 24-11-2005, the Judge Family Court, Shorkot, rejected the objections of the petitioners and decreed the respondent No,1 ' s Suit No,1 for recovery of dowry articles along with Rs .2,00,000 and Rs .18,000 as the value of gold ornaments, weighing 2 tolas, on account of deferred dower. The aforesaid judgment and decree was challenged in appeal which has been dismissed by the learned Additional District Judge, Shorkot, vide his judgment and decree dated 15-2-2007. The legality of the aforesaid judgments and decrees of learned courts below has been assailed through this writ petition.
2. It has been argued by the learned counsel for the petitioners that even though the parties had consented to the appointment of the referee, no referee could have been appointed as Qanun-e- Shahadat, 1984, is not applicable to the family suits in view of section 17 of the West Pakistan Family Courts Act, 1964. In the alternative, it is pleaded that a referee in view of Article 33 cannot give a decision but can only give information and if he gives a decision it is like an award to be dealt with under the provisions of the Arbitration Act, 1940, which allow the parties to file their objections to the award. In support of his contention, learned counsel has referred to Ghulam Farid Khan v.
Muhammad Hanif Khan and another (1990 SCMR 763), Nazir Ahmad and others v. Muhammad Qasim and others (2004 SCMR 1292). It has also been contended that in view of Muhammad Akram v. Mst. Hajra Bibi and 2 others (PLD 2007 Lahore 515), respondent No,1's claim for compensation by reference to Iqrar nama dated 13-4-2004 and promissory note dated 13-4-2004, being, an actionable claim, does not fall within the definition of property wherefor if is not amenable to the jurisdiction of a Family Court but can only be pursued before the Civil Court having general jurisdiction.
3. Conversely, the learned counsel for respondent No,1 has submitted that since the Qanun-e- Shahadat Order, 1984, is not applicable, the provisions of its Article 33 cannot be pressed into service to challenge the decision of the referee. It is submitted that the referee was appointed with the mutual consent of the parties and his decision cannot be questioned by the petitioner only because it has gone against him. In support, learned counsel has placed reliance on Mst. Sharif Bibi and another v. Syed Muhammad Nawaz Shah and others (2008 SCMR 1702), Mst. Lalan v. Noor Muhammad and 12 others (1994 SCMR 1771), Muhammad Arif and others v. Farrukh Hafeez (2005 YLR 3106), Haji Anwar Ali and others v. Bashir Ahmad (2002 CLC 421). Learned counsel further submits that the procedure contemplated under the Family Courts Act, 1964, is flexible and is not subject to the rigors of the Oanun-e-Shahadat, 1984.
4. 1 have given due consideration to the arguments advanced by the learned counsel for the parties as well as the case-law presented by them.
5. The primary issue involved in the case is that if the impugned judgments, being based on the verdict given by the referee, can be sustained by reference to Article 33 of the Qanun-e-Shahadat, 1984, or otherwise. The case-law cited by reference to Article 33 of the Qanun-eShabadat, 1984, appears to show some diversity of views as Ghulam Farid Khan v. Muhammad Hanif Khan and another (1990 SCMR 763), Nazir Ahmad and others v. Muhammad Qasim and others (2004 SCMR 1292) supports the contention that the decision of the referee is not an information in terms of Article 33 of Qanun-e-Shahadat, 1984, but is an award as it is not based on the personal knowledge of the referee but has been reached after hearing the parties and other witnesses.
However, in Mst. Lalan v. Noor Muhammad and 12 others (1994 SCMR 1771), the contention that the referee had become an arbitrator was repelled by the honourable Supreme Court who observed that "Learned counsel for the petitioner submitted that as the evidence had been recorded by Ch. Muhammad Akram, Advocate, as such he was an Arbitrator, therefore, an opportunity should have been given to the petitioner to file objection to the award. This contention has no force. Ch. Muhammad Akram was appointed to resolve the dispute, by the parties themselves. He had taken the evidence to settle the real dispute between the parties. Such evidence was necessary because the contention of the petitioner was that there was an alternate passage for the use of the respondents, and that they had not been using such passage. After taking evidence, Ch. Muhammad Akram resolved the controversy which formed the basis of the judgment of the Additional District judge". In Muhammad Arif and others v. Farrukh Hafeez (2005 YLR 3106) Mehr Din and 2 others v. Siraj Din and 2 others (PLD 1980 Baghdad-ul-Jadid 45) also, it was held that a party could not be allowed to resile from the agreement as the inquiries made by the referee "would not denude him of his character as a referee and turn him into an arbitrator." Again in Haji Anwar Ali and others v. Bashir Ahmad (2002 CLC 421), it was held tha to the decision of a referee would not be vitiated by his act of acquiring further information.
6. The case-law referred to above interprets and applies Article 33 of the Qanun-e-Shahadat, 1984, which it has been argued is not relevant in view of Abdul Majid v. Judge Family Court, Kehror Pacca District Lodhran and 2 others 2003 YLR 884 and Shahid Raza v. Dr. Fauzia Shaheen and 2 others (2003 MLD 1215) wherein it was held that the provisions of the Qanun-e-Shahadat, 1984, are inapplicable to the proceedings before the Family Courts in view of section 17(1) of the West Pakistan Family Courts Act, 1964, reproduced below:- "17. Provisions of Evidence Act and Code of Civil Procedure not to apply (1) Save as otherwise provided by or under this Act, the Qanun-e-Shahadat, 1984 (P.O. No,10 of 1984) and the Code of Civil Procedure, 1908, except sections 10 and 11 shall not apply to proceedings before any Family Court, in respect of Part I of Schedule."
7. If the provisions of the Qanun-e-Shahadat, 1984, including its Article 33 are inapplicable, it needs to be examined if the appointment of the referee can be justified by reference to the provisions of the West Pakistan Family Courts Act, 1964. Of course, the W.P. Family Courts Act, 1964, is totally silent on the point as it contains no provision which either allows or prohibits the appointment of a referee. However, there is ample authority for the view that a Family Court can, for the purpose of settlement of matrimonial disputes, employ or adopt any procedure which is not expressly barred or prohibited by law. According to Muhammad Azam v. Muhammad Iqbal (PLD 1984 Supreme Court 95), a Family Court has been given a real inquisitorial jurisdiction by introduction of special procedure including an obligatory effort to discover possibilities of amicable settlement. A Family Court can, thus, follow a flexible and liberal procedure while proceeding with a family suit and can exercise all such powers as are not prohibited by the West Pakistan Family Courts Act, 1964. In Ejaz Mahmood v. Mst. Humaira and another (1983 CLC 3305) and Mirza Shahid Baig v. Lubna Riaz and 2 others (2004 CLC 1545), it was observed that the provisions of C.P.C. Are not applicable to a family suit but the Family Judge can adopt any procedure which is not expressly barred by the Act and which is necessary to prevent the course of justice being deflected. Again in Abdul Majid v. Judge Family Court, Karore Pacca and 2 others (2003 YLR 884), it was held that a Family Court has to regulate its own procedure and can apply any procedure not prohibited by law. In this context, it may be added that although the provisions of the Code of Civil Procedure, 1908 and the Qanun-e- Shahadat, 1984, would not be applicable in stricto senso but the principles embodied therein sans B technicalities could be applied by the Family Court to advance the ends of justice provided there is no conflict or inconsistency with the provisions of the West Pakistan Family Courts Act, 1964. In support, reference can be made to Akhtar Ali Said Bcha v. Mst. Naheed Bibi (PLD 2003 Peshawar 63) wherein it was observed that "The purpose of enacting Family Courts Act is to frustrate the technicalities for the purpose of justice between the parties in the shortest possible manner. All that the Family Courts Act has done is that it has changed the forum, altered the method of trial and empowered the Court to grant better remedies. The provisions of C.P.C. Are not applicable in strict() senso to proceedings before the Family Court by virtue of section 17 of the West Pakistan Family Courts Act, 1964. The purpose of enacting special law regarding the family disputes is for the purpose of advancement of justice and to avoid technicalities. It is settled proposition of law that Judge Family Court is competent to regulate its own proceedings as the West Pakistan Family Courts Act. 1964, does not make provision for every eventuality and unforeseen circumstances".
8. In the present case, not only did the parties by consensus select the referee in question but also agreed to be bound by his decision in respect of the disputes arising between them for the return of dowry, recovery of dower and compensation. The appointment of the referee was not made by the Family Court on its own but on the express desire of both the parties who demonstrated their absolute faith and confidence in the referee. A perusal of the referee's decision also shows that it is based on the admissions of petitioner No,1 and petitioner No,2. Regardless of the divergent case- law on the point, it cannot be said the spirit or principle underlying Article 33 of the Qanun-e- Shahadat, 1984, has not been kept in view by the Judge Family Court while upholding the decision of the referee nor can it be said that the learned Judge Family Court has overlooked the provisions of West Pakistan Family Courts Act, 1964, Such alternate dispute resolution is also not alien to nor prohibited by the provisions of West Pakistan Family Courts Act, 1964. Apparently, the referee was appointed as such by the parties for having personal knowledge of the matters in dispute as he is admittedly related to respondent No,1, being her brother-in-law. His decision is based on his own knowledge as well as the statements of the parties. His act of acquiring further information by hearing the parties cannot be regarded as a circumstance as would vitiate his statement or decision. If he had not heard the parties but had given a statement or decision solely on the basis of his own personal knowledge, his statement would still have been questioned by the adversely affected party for failing to hear the parties. The all important fact that the parties agreed to abide by the decision of the referee cannot be ignored in the circumstances of the case. Reference may be made to Mst. Sharif Bibi and another v. Syed Muhammad Nawaz Shah and others (2008 SCMR 1702), wherein the honourable Supreme Court held that "the parties were competent to agree to refer the matter to a referee for the decision of the suits and the Court was competent to appoint agreed person as referee for decision of the suits and therefore objection to the jurisdiction of the trial Court in appointing a referee and referring the matter to him for decision of the suits, has no legal basis." It would also be of benefit to refer to S.E. Makudam Muhammad T. v. Muhammad Sheik Abdul Kadir and another (AIR 1936 Madras 856), wherein it was observed that "When a party invites the Court to adopt a procedure which is not contemplated by the C.P.C., and is in fact a procedure extra cursum curiae, he cannot turn round and say that the Court is to blame for adopting the very procedure which he invited the Court to follow. There is such a thing as estoppel apart from the question of adjustment and the doctrine of estoppel would apply to a party who attempts to blow hot and cold in this fashion."
9. In the light of the foregoing discussion, I find that the impugned judgments cannot be called into question for being based on the decision/statement of the referee. However, the question as to whether the Family Court had jurisdiction, with respect to respondent No, 1 's claim for compensation remains to be addressed. There has been a divergence of views over this issue. In Muhammad Akram v. Mst. Hajra Bibi and 2 others supra, it has been held that a Family Court has no jurisdiction to try a wife's suit or claim for compensation for divorce as such a claim cannot be regarded as a "personal property and belongings of the wife" in terms of item No,9 of the Schedule to the Act. On the contrary, it has been held in Nasrullah versus District Judge, Mianwali and two others supra that a claim of this nature can be the subject-matter of a family suit as it is an actionable claim which is a property falling within the scope of item No, 9 of the Schedule read with section 5 of the West Pakistan Family Courts Act, 1964. However, there is no need to dilate upon the aforesaid divergence of views as the Honourable Supreme Court in Syed Mukhtar Hussain Shah v.
Mst. Saba Imtiaz and others (PLD 2011 Supreme Court 260) has settled the controversy by approving the rule laid down in Muhammad Akram v. Mst. Hajra Bibi and 2 others supra. In this regard; the relevant paragraph of the aforesaid judgment of the, honourable Supreme Court is reproduced hereunder:-- "The definition of "actionable claim" in the TPA is strictly and exclusively relatable to the operative provisions of Chapter VIII of that Act, which by virtue of sections 130 to 137 thereof, inter alia, prescribes the requirements and the broad mechanism for the transfer and the assignment of the "actionable claims" so defined in section 3. It has no application beyond the Act even if any general concept emerges on account of the expression, it is restricted to the law it forms part and cannot be stretched to apply to any other law of the land, including the Family Courts Act, 1964, thus the interpretation of Entry No,9 ibid as provided by Muhammad Akram v. Mst. Hajra Bibi and 2 others (supra) is the correct explication of law, which is hereby approved however, adding thereto, it may be held that if the ratio of Nasrullah dictum (supra) which is entirely and solely founded on the noted concept/definition is taken to be correct, then a suit of Specific Performance, declaratory suits of any nature, or any other civil legislation between a wife and husband shall be amenable to the special jurisdiction of the family Court, which is not intent of the law. Because according to the literal approach of reading a statute, the statute has to be read literally by giving the words used therein, ordinary, natural and grammatical meaning. Besides, the addition and subtraction of a word in a statute is not justified, except where for the interpretation thereof the principle of reading in and reading down may be pressed into service in certain cases; thus when in Entry No,9 "actionable claim" has not been provided by the legislature, it shall be improper and shall impinge upon the legislative intent and the rules of interpretation to add this expression to the clause/entry".
10. Keeping in view the law laid down by the honourable Supreme Court in Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz and others supra, there is no doubt that in the instant case the Judge Family Court was vested with no jurisdiction to try respondent No,1 's claim for compensation of Rs, 200,000 arising out of Iqrar nama dated 13-4-2004 and promissory note dated 13-4-2004 as such a claim could only be entertained and decided by the Civil Court of ordinary jurisdiction. It is settled law that the parties cannot by consent confer jurisdiction on a court that it otherwise lacks under the law. As such, even though the parties by consent had also referred to the referee their dispute as to the compensation under Iqrar nama dated 13-4-2004 and promissory note dated 13-4-2004, such consent could not vest the learned Family Court with jurisdiction. It is to be noted that the learned Family Court was not mindful of the question of its jurisdiction despite a specific objection taken by the petitioners in their written statement that the Family Court lacked jurisdiction over the subject-matter of the suit.
11. The impugned judgments/decrees in favour of respondent No,1 have allowed her recovery of dowry articles, valued at Rs,70300 and Rs,18,000 as the value of gold ornaments, weighing 2 tolas, along with Rs,200,000 claimed as compensation under the Iqrar nama dated 13-4-2004 and promissory note dated 13-4-2004. As already discussed, respondent No, 1 's claim of compensation cannot be sustained, as the learned Family Judge had no jurisdiction to entertain it. However, it would result in manifest injustice to respondent No,1 receives Rs,18,000 as the value of gold ornaments, weighing two tolas. Such valuation does not in any way reflect the current price of gold which has registered an extraordinary increase over the past few years. In the circumstances, the impugned judgments/decrees need to be modified so that petitioner No,2 is made liable to pay respondent No,1 the current market price of the gold ornaments in question. In exercise of its equitable jurisdiction, this Court feels that it would be in the interest of justice to allow such a relief to respondent No,1.
12. For the reasons discussed above, the writ petition is allowed in the terms that the impugned judgments/decrees are set aside to the extent of respondent No, 1 's claim of Rs,200,000 as compensation under the Iqrar nama dated 13-4-2004 and promissory note dated 13-4-2004 while the impugned judgments/decrees stand modified to the extent that it is ordered that respondent No,1, shall be entitled to recover from petitioner No,2 the current market price of gold ornaments, weighing 2 tolas. Parties are left to bear their own costs.