' WAQAR AHMAD SETH, J.---Syed Mubashir Hussain Shah petitioner seeks the constitutional jurisdiction of this Court praying for:-- "that on acceptance of the writ, petition, the impugned judgment/decree dated 29-4-2011 and 20-10-2011 are nullity in the eyes of law and are against the facts of the case and cannot be sustained. If they are not set aside, the petitioner will suffer with an irreparable loss".
2. The brief facts, as mentioned in the petition, are that Syeda Salma Batool Kazmi filed a suit for recovery of maintenance allowance, gold ornaments weighing 70 grams or in alternate its price of Rs,1,75,000/- and possession of land as well as the house against the petitioner. The petitioner appeared and contested the suit by filing written statement. The learned Judge Family Court after recording pro and contra evidence and hearing the parties decreed the suit of respondent vide judgment and decree dated 29-4-2011. Feeling aggrieved, the petitioner filed appeal and learned appellate court after hearing the parties dismissed the appeal of petitioner vide judgment and decree dated 29-10-2011. Hence, this writ petition.
3. Arguments heard and record perused.
4. A perusal of column No,17 of Nikahnama would reveal that at the time of marriage of the parties the share of petitioner in the site of Saw Machine as well as a set of residential house were given to respondent No,1, but it is settled law that suit for recovery of the same was not maintainable before the Family Court and respondent was liable to file ordinary civil suit for recovery of the same. In the case of Muhammad Akram v. Mst. Hajra Bibi and 2 others reported as PLDIA 2007 Lahore 515, it was held as under:-- "Column No,17 of the Nikahnama contained the stipulation that in case of sour relations between the spouses or divorce by the husband, a sum of Rs,1,00,000/- shall be paid to the wife -- Suit of wife for dissolution of marriage was decreed, whereafter she brought the suit for recovery of Rs,1,00,000/- which was dismissed by the Family Court holding that her suit was not maintainable before the Family Court and she was liable to file ordinary civil suit for the recovery of the said amount. Appellate Court, however, found that matter fell within the purview of Entry No,9 of the Schedule to S.5, West Pakistan Family Courts Act, 1964 and suit was competent---Validity---Held, entry No,9 of the Schedule to S.5 West Pakistan Family Courts Act, 1964 did not cover any amount which was not yet the property of the wife and she only had a claim to recover the amount from the husband on the basis of any special condition incorporated in the nikahnama---Such claim could not be equated as a personal property belonging to wife---Amount in question was also not covered under the rule of actionable claims as envisaged by Section 130, Transfer of Property Act, 1882---Family Court in circumstances had no jurisdiction in the matter and the suit in that behalf before the said court was not competent".
5. In the case of Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz and others reported as PLD 2011 Supreme Court 260, it was held as under:-- "West Pakistan Family Courts Act, 1964, was special law meant to cater for specific object and special kind of cases strictly covered by items mentioned in Sched: thereto - Civil Courts were the courts of inherent and plenary jurisdiction competent to adjudicate all disputes of civil nature between litigating parties but such jurisdiction in terms of S.9, C.P.C. Had been ousted either expressly or by necessary implication---In order to evaluate whether such jurisdiction had been taken away, the special law under which it was so done, must not only be strictly construed but also be accordingly applied---If provisions of S.5 of West Pakistan Family Courts Act, 1964, were read with the entries of the Schedule, there was no confusion or ambiguity about cases falling within item Nos.1 to 8 thereto while entry No,9 was incorporated by way of amendment---Words "personal property and belonging of wife" as appearing item 9 of Sched. To West Pakistan Family Courts Act, 1964, could not be interpreted to mean that suit for specific performance, declaratory suits of any nature or any other civil litigation between wife and husband was amenable to special jurisdiction of Family Court, as such, was not the intent of law---When in entry No,9, of Sched. To West Pakistan Family Courts Act, 1964 "actionable claim" had not been provided by legislature, it would be improper and was impinge upon the legislature intent and rules of interpretation to add such expression to the clause/entry---Judgments and decrees passed by all Courts below in favour of wife were set aside and her suit was dismissed".
6. Consequently, this writ petition is allowed and impugned judgments and decrees of the courts below to the extent of recovery of properties mentioned in Column No,17 of the Nikahnarna are set aside and suit of respondent No,1 for such prayer stands dismissed whereas remaining judgments and decrees are maintained. However, the respondent would be at liberty to seek recovery of the properties mentioned in Column No,17 of the Nikahanama by filing ordinary civil suit. No order as to costs.