' KH. IMTIAZ AHMAD, J.---This writ petition under Article 199 of the Constitution is directed against the order dated 17-2-2012, whereby the application for the framing of issues with regard to the counter claim of the petitioner/defendants was dismissed.
2. The relevant facts for the disposal of this writ petition are that respondent No,1 filed a suit for the recovery of dower amount, dowry articles, gold ornaments and maintenance. The defendants filed a written statement, wherein it was maintained that the plaintiff left the house with her free consent and has not left any gold ornaments belonging to her in the house of defendants but on the other hand she took away all the belonging of the defendants including gold ornaments 20 tolas, prize bonds of Rs,60,000, cash Rs,50,000, the clothes of Rs,25,000 and some other valuables. Out of the pleadings of the parties the learned trial court framed the following issues:--
(1) Whether the plaintiff is entitled to recover maintenance allowance, if so, at what rate and for what period? OPP
(2) Whether the plaintiff is entitled for recovery of dowry articles or alternate value Rs,6,53,500? OPP
(3) Whether the plaintiff is entitled to recover gold ornaments weighing 10 tolas? OPP
(4) Relief.
3. Before recording of evidence on 20-1-2012, the present petitioner, who was defendant filed an application for framing of issues with regard to his counter claim. The learned trial court after hearing the counsel for the parties 'came to the conclusion that the counter claim of the defendant does not come within the schedule of section 5 of the West Pakistan Family Courts Act, 1964 and so dismissed the petition. Feeling aggrieved the present writ petition has been filed.
4. Learned counsel for the petitioner contended that it was mandatory for the learned trial court to frame the issues in view of divergent pleading of the parties. In this way he placed reliance captioned Aftab Ahmad Butt v. Babra Raheem (2007 CLC 575) (Shariat Court (AJ&K)) and Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz and others (PLD 2011 SC 260).
5., Arguments heard. Record perused.
6. As far as the case-law cited by the learned counsel for the petitioner is concerned, suffice it would be to say that the case-law cited by the learned counsel for the petitioner reported as Aftab Ahmad Butt v. Babra Raheem (2007' CLC 575) (Shariat Court (AJ&K)), the said case relates to provisions of AJK Family Court Act, 1993 and has no nexus with the present proposition. As far as the other case reported as Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz (PLD 2011 SC 260) is concerned, in the said case, second item No,9 of the schedule 5 of the Family Court Act, 1964 i,e, personal property belonging to wife was taken into consideration and the .Said case has no nexus with the present proposition. Under section 9 of the West Pakistan Family Courts_ Act, 1964, the provisions have been incorporated with regard to the counter claim. It provides that in a suit for dissolution of marriage or maintenance, in written statement, the defendant may also claim for decree of restitution of conjugal rights, which shall be deemed to be plaint and no separate suit shall lie for it. Similarly if the wife is defendant, she is entitled to claim in a written statement to a suit for restitution of conjugal rights for dissolution of marriage including Khulla, which would be deemed as a plaint and no separate suit would lie. There is no other provision in the. West Pakistan Family Courts Act, 1964 with regard to the counter claim. The schedule of section 5 of the West Pakistan Family Courts Act, 1964 provides nine type of suits in which the family court had the jurisdiction. Those are dissolution of marriage including Khulla, dower, maintenance, restitution of conjugal rights, custody of children, guardianship, jactitation of marriage, dowry and personal property or belonging to a wife. Except the above mentioned claims, in no other claim the family court had the jurisdiction. If allegedly the wife has taken some articles belonging to the defendant then they do not come within the jurisdiction of family court to adjudicate upon. In this way the learned trial court committed no illegality by dismissing the petition of the petitioner with regard to the framing of issues of counter claim. This being so this writ petition has no force and the same stands dismissed in limine.