ABDUL WAHEED KHAN, J.-- The petitioner, who was married with respondent Muhammad Ishaque on 13-12-1996, filed three separate suits for dissolution of marriage, recovery of dowry articles and also recovery of maintenance allowance and the same were decreed through judgment and decree dated 8-12-2003 by the Judge, Family Court, Jhang in the following terms:- "Since the defendant has alleged that he has given golden ornament and plot was made to be purchased in the name of the plaintiff which is civil liability. So, the defendant can seek remedy through civil suit, if he has alienated any property to the plaintiffs, hence, this issue is decided in negative.
' The suit of the plaintiff for dissolution of marriage is decreed as well as suit of the plaintiff for recovery of dowry articles is also decreed to the extent of Rs,I5,000 and suit of the plaintiff for maintenance allowance is hereby dismissed."
2. The said judgment was assailed, through an appeal, with the prayer that the decree be modified directing the present petitioner/decree holder to return the gold ornaments weighing 5-tolas, a piece of land measuring 5-marlas and valouable apparels and other goods all worth Rs,144200.
The said appeal was dismissed vide judgment dated 19-2-2004 by the Addl. District Judge, Jhang with the observations as under:--- "It follows, of necessity, that the marriage was not dissolved, on Khula but on the findings on the aforesaid Issues Nos.1 and 2. The contention that the decree be modified and benefits derived by the respondent in the sum of Rs,144200 ordered to be returned to the appellant, is therefore misplaced. The appeal is according not maintainable."
3. Muhammad ishaque respondent No,1 filed a suit for declaration in the Civil Court on 30-4-2004 to the effect that the petitioner/defendant had no concern with a plot measuring 5-marlas falling within Khata No,53, situated in Rao Colony Jhang. In the said suit, the petitioner/ defendant filed an application under Order VII, Rule 11, C.P.C. With the assertions that the Family Court has the exclusive jurisdiction to try the said suit and that the plaint was liable to be rejected. The said application was accepted vide order dated 28-5-2005 with the following observations:--- "Therefore, the Civil Court has no jurisdiction where the question of recovery of benefits given to the wife at the time of marriage is involved. The Family Court has exclusive jurisdiction to try the same."
' The plaint was returned under Order VII, Rule 10, C.P.C. To be presented before the proper forum.
4. The respondent No,1 filed an appeal against the said order and the District Judge Jhang vide judgment dated 28-4-2006 upheld the order of the Civil Judge Jhang with the observations as under:--- "It may be mentioned that for recovery of dowry articles, Schedule Part-I of Family Courts Act was amended in 1997, whereas for personal property belonging to the wife, an amendment was made on 1st October, 2002 through amending Ordinance No,LV of 2002, therefore, being the personal property of the wife in terms of section 2(a) of Dowry and Bridal Gifts (Restriction) Act, 1976, the remedy with the appellant is before the "Family Court" and not the "Civil Court". No exception can be taken to the impugned order passed by the learned Civil Judge, Jhang."
5. Again, on 23-11-2007, respondent No,1 filed a second suit for declaration in the Family Court with the same averments as made )y him in his earlier suit dated 30-4-2004 wherein again the petitioner/defendant filed' an application under sections 11 and 151, C.P.C. Read with section 17 of the Family Courts Act for dismissal of the suit and the Family Court vide its order dated 1-6-2010, while accepting the said application, rejected the plaint with the following observations:--- "The respondent/plaintiff filed this suit in a civil court on 30-4-2004 and the plaint was returned on 28-5-2005. Later on, his appeal was decided on 28-4-2006. As the plaint was returned to present the same before the competent court, but the respondent/ plaintiff filed a new plaint and did not present the plaint filed on 30-4-2004. So from this fact this suit should be treated as a fresh suit.
As the matter has been decided directly and substantially in the appeals. So the section 11, C.P. C.
Is applicable in this matter, so the application is hereby accepted and the plaint is rejected."
6. The said order was challenged through an appeal before the Additional District Judge which was accepted through the impugned judgment dated 5-3-2011. The operative part whereof is as follows:--- "Resultantly, learned trial court has committed illegality as well as material irregularity while exercising its jurisdiction so vested, therefore, while accepting appeal I set aside the impugned judgment and decree with the direction that trial court is directed to frame issue with regard to principle of res judicata and then collect the evidence of both the parties in this regard and decide the case of the appellant plaintiff afresh in accordance with law. Case is remanded back to the trial court. Trial court is further directed to register the case on its original number. Both the parties are directed to appear before the trial court on 15-3-2011."
7. The contentions of the counsel for the petitioner are that the plaint of earlier suit for declaration filed by respondent No,1 was returned by the Civil Court vide its order dated 28-5-2005 for presenting the same before the Family Court and that the said order was affirmed by the appellate court vide judgment dated 28-4-2006 and the respondent again filed a fresh suit for declaration in the Family Court against his ex-wife and that too was not maintainable and thus the Civil Court had rightly returned the plaint of the said suit vide order dated 1-6-2010 and that the impugned judgment of the appellate court dated 5-3-2011 whereby the matter was remanded with direction to the trial court to frame an issue on the point of res judicata is uncalled for in the circumstances of the case. According to him, the respondent/ plaintiff had started second round of litigation by filing second civil suit on the same facts and cause of action thus it is a clear case of rejection of plaint.
8. Conversely, the contentions of the counsel for the respondent No,1 are that the plaintiff/respondent filed a second suit in the. Family Court as earlier plaint was returned vide order dated 28-5-2005 of the Civil Court and that the provisions of section 11, C.P.C. Are not applicable in the instant case.
9. Arguments of the counsel for the parties have been heard and record perused. It is borne out of the record that a suit for dissolution of marriage filed by the present petitioner was decreed on the ground of cruelty, non-payment of maintenance allowance and also on the basis of Khula. The Family Court vide its judgment dated 8-12-2003 gave observation that so far as return of the benefits, derived by the present petitioner being ex-wife of respondent No,1, are concerned, the defendant/respondent can seek remedy through a civil suit. The said judgment and decree was assailed before the appellate court that the decree be modified with directions to the petitioner to return the gold ornaments in the quantity of 5-tolas, a piece of land measuring 5-marlas and valuable apparels and other goods all worth Rs, 144200 but the appellate court vide judgment dated 19-2-2004, declined to accede to the prayer, for return of the aforementioned articles and the property. The B operative part whereof is mentioned in para-2, supra. So the controversy came to an end once for all as the judgment dated 19-2-2004, had attained finality. In the suit, filed on 23-11-2007, the matter in issue was directly and substantially in issue in the former suit filed on 17- 6-2003 and the appeal decided on 19-2-2004. After the judgment of the appellate court dated 19- 2-2004 whereby the assertions of the respondent were found to be misplaced, the respondent could not claim the gold 'ornaments and the property through a subsequent suit filed either before the Civil Court or the Family Court. The Family Court rightly rejected the plaint vide order dated 1-6- 2010. From perusal of certified copies of the pleadings and the judgments, it is crystal clear that there was no reason or necessity of remanding the matter to the Family Court for framing of issues on the point of res judicata and decision of the case afresh.
10. For the aforesaid reasons, this revision petition is accepted and the impugned judgment of the Additional District Judge, Jhang dated 5-3-2011 is set aside with no order as to cost. Resultantly, the plaint filed by the respondent titled "Muhammad Ishaque Nadeem versus Mst. Sibghat lqbal" dated 23-11-2007 stands rejected.