' ALI AKBAR QURESHI, J.---Through this Constitutional petition, the petitioner has challenged the validity of judgment and decree dated 02.12.2011, passed by learned appellate court/Additional District Judge, Jatoi, whereby the judgment and decree dated 28.03.2011, passed by learned Judge Family Court, Jatoi, in a suit filed by the petitioner, was set aside and suit of the petitioner was dismissed.
2. As per record of the instant case, the following questions require determination i. Whether the Family Court, under the Family Courts Act, 1964, has the jurisdiction to decide the entries made in column No,16 of Nikah Nama (Exh.P.1). ii. Whether the Entry No,10 made through Act No,11/2015 dated 18.03.2015 in Schedule (Part I) of Family Courts Act, 1964 would have retrospective effect.
3. The petitioner, who was married with one Muhammad Nawaz (deceased), the predecessor-in- interest of the respondents, instituted a suit for recovery of dower on 22.01.2008 on the ground, that at the time of Nikah, Muhammad Nawaz deceased, husband of the petitioner, promised to mutate 15-Bigha agricultural land in her name in lieu of the dower and would pay Rs,40,000/- per month; the afore-referred promise was duly entered into Nikah Nama (Exh.P.1) dated 05.12.1973. Lastly prayed, that the suit be decreed in her favour. The respondents, who appeared in response of the notice before the Court, submitted their written statements, wherein the respondents raised a preliminary objection regarding the jurisdiction of the Family Court and on merits, refuted the claim of the petitioner. The learned Judge Family Court, completed the trial and finally decreed the suit vide judgment and decree dated 28.03.2011 in favour of the petitioner, against which an appeal was filed, wherein the learned appellate court accepted the appeal vide judgment and decree dated 02.12.2011 and set aside the judgment and decree passed by the learned Judge Family Court on the ground, that the learned Family Court had no jurisdiction to decide the controversy involved in this case.
4. Heard. Record perused.
5. Firstly it is to be seen whether the learned Family Court had the jurisdiction to decide the controversy of the instant case.
6. In this regard firstly the Entry No,10 added in the Schedule (Part I) of Family Courts Act, 1964, through Act No,11/2015 dated 18.03.2015 is to be examined. For ready reference, the same is reproduced as under:-- "15. Amendment in Schedule of Act XXXV of 1964:---In the said Act, in the Schedule, in Part 1, for entry at serial No,9, the following shall be substituted:
9. The personal property and belongings of a wife and a child living with his mother.
10. Any other matter arising out of the Nikahnama."
' Through the aforesaid Entry, jurisdiction confers upon the learned Family Court to entertain and adjudicate the matter arising out of the Nikah-Nama. In this case, the petitioner is claiming the land, which is part of the Nikah-Nama (Exh.P.1), by filing a suit under the provisions of the Family Courts Act, 1964, in Family Court established under the Family Laws.
7. Since, the Entry was added during the pendency of the instant case, therefore, as per the dictum laid down by the Hon'ble Supreme Court of Pakistan, in a judgment cited as Air League of PIAC Employees through President v. Federation of Pakistan M/O. Labour and Manpower Division Islamabad and others (2011 PLC 89), that a change of forum to try the lis is a procedural change and operates retrospectively and according to judgment cited as Rai Naeem Shahadat v. Mst.
Qamar Munir and others (2004 SCM R 412), the Entry made in the Schedule (Part I) being procedural in nature would have retrospective effect. Further reliance is placed on Yusuf Ali Khan Barrister-at- Law Lahore v. Messrs Hongkonk and Shanghai Banking Corporation Karachi and another (1994 SCM R 1007), Messrs National Bank of Pakistan, Lahore v. Muhammad Akram Khan and 17 others (2000 CLC 1493), Iftikhar Ali v. The State (PLD 2001 SC 38), Khalid Qureshi and 5 others v. United Bank Limited 1.1 Chundrigar Road, Karachi (2001 SCM R 103).
8. From the above dictum laid down by the Hon'ble Supreme Court of Pakistan, it is clear, that the Family Court has the jurisdiction to entertain and decide the matter arising out of Nikah-Nama and this Entry No,10 would have retrospective effect. By this way, it can conveniently A be observed, that the learned Judge Family Court rightly assumed the jurisdiction and decided the lis strictly in accordance with law, whereas the learned appellate court committed jurisdictional defect while accepting the appeal filed by the respondent.
9. In a latest judgment cited, as Dr. Asma All v. Masood Si.Jjad and others (PLD 2011 SC 221), the Hon'ble Supreme Court of Pakistan exactly in the identical matter has observed as under:- "20. Now we can take to the question of determination as to whether the appellant-wife is entitled to the house measuring 2 Kanals and 100 Kanals agricultural land. Regarding house, there is oral evidence in the shape of statements of P. Ws. 1 to 3 and appellant-wife herself and a document Exh.P.W.2/D-1 brought on record by respondent-husband in the statement of P. W.2, wherein there is clearly recorded that a house situated in village Mirza, Tehsil and District Attock, measuring 2 Kanals of which market value has been given ay Rs,700,000. No successful suggestion has been made to the appellant/plaintiff by the respondent/defendant, when she was subjected to cross- examination by specifying the entries made in the Nikkah Nama to be incorrect except a general suggestion and not specific in respect of the house and agricultural land. "
' It has further been observed in the judgment (supra) as under:-- "23. In respect of 100 Kanals of agricultural land, since no description of the land was given in the Nikkah Nama in terms of its Khasra Numbers or identifying data, a decree is given in favour of appellant-wife as prayed for in her plaint. In view of absence of particulars of 100 Kanals land, the learned Trial Court shall appoint commission by directing a member of the Revenue hierarchy, to determine the average price of per Kanal agricultural land in village Chassian, Tehsil and District Attock and after such determination the appellant will be entitled to receive 100 Kanals land or its market value so determined."
10. As earlier mentioned, that the facts of this case and the judgment (supra) are similar, so I feel no hesitation to observe, that the petitioner has successfully proved her case through reliable and credible evidence, therefore, is entitled for the decree prayed in the plaint on the strength of the dictum laid down by the Hon'ble Supreme Court of Pakistan in the judgments (supra).
11. Learned counsel for the respondents submits, that the learned Family Court had no jurisdiction to entertain and decide the issue and if there is any amendment in law, that would has prospective effect and not retrospective.
12. The contention raised by the learned counsel for the respondents has no substance in view of the principle laid down by the Hon'ble Supreme Court of Pakistan in the judgments referred earlier.
The law referred by the learned counsel for the respondents has no relevance with the proposition involved in this matter and distinguish.
13. In view of above, this writ petition is allowed, the judgment and decree dated 02.12.2011 passed by the learned appellate court is set aside and that of the learned Judge Family Court dated 28.03.2011 is upheld. This petition is accepted subject to cost of Rs,25,000/- which shall be paid to the petitioner by the respondents.