JAWAD HASSAN, J.---Through this Constitutional petition, the Petitioner has called in question the order dated 20.06.2017, passed by learned Judge Family Court, Ferozwala, whereby the application under Order VII Rule 11, C.P.C. filed by the Petitioner was dismissed.
2. Brief facts for the disposal of this Constitutional Petition are the Petitioner filed application .under Order VII, Rule 11, C.P.C. for rejection of plaint for recovery of dower filed by the Respondent No,1, on the ground that the Respondent has earlier filed the suit for recovery of maintenance allowance and deferred dower/House measuring 6 marla, situated at Sharif Park, Kot Abdul Malik, District Sheikhupura duly mentioned in Column No,16 of Nikahnama on 02.10.2012, on the basis of same cause of action regarding the same subject matter i,e, said House. Further averred that the claim of dower/house had already been declined by the learned Judge Family Court vide judgment and decree dated 21.05.2014 but the learned trial Court after hearing the arguments dismissed application under Order VII Rule 1 1, C.P .C. vide order dated 20.06.2017. Hence, this writ Petition.
3. Learned counsel for the Petitioner states that the Respondent earlier filed a suit against the Petitioner before the same learned Judge Family Court on 02.10.2012 and has included her claim for dower in that suit, against which the Petitioner has filed written statement and issues were framed, evidence was led by the Parties and finally the learned Judge Family Court decreed the suit on 21.05.2014 except the claim of dower . He further states that against the judgment and decree of the learned Judge Family Court the Respondent ought to have filed an appeal under Section 14 of the West Pakistan Family Courts Act, 1964 (the "Act") but she did not file any such appeal and after lapse of three years she filed second suit on 22.04.2016 before the same learned Court claiming the same relief, therefore, the Petitioner filed applic ation under Order VII Rule 11, C.P.C. but the learned Judge Family Court dismissed the same vide impugned order without considering this aspect of the case that the subsequent suit on the similar ground is hit by the principle of res judicata. Learned counsel relied upon "Muhammad Ramzan Shahid v. Additional District Judge Samundri and 2 others " (2017 CLC 1272 ) and "Mst. Sibghat lqbal v. Muhammad Ishaque Nadeem " (2017 CLC 329 ), in support of his contentions.
4. On the other hand, learned counsel for the Respondent No,1 vehemently opposed the arguments advanced by the learned counsel for the Petitioner and defended the impugned order .
5. Arguments heard and record perused.
6. The main arguments of learned counsel for the Petitioner are that the subsequent suit is hit by principle of res judicata. He relies upon Section 17 of the Act as well as Section 11 Explanatio n-V of the C.P.C. to state that although C.P.C. is not applicable to the proceedings before the learned Judge Family Court but Sections 10 and 11, C.P.C. have been expressly made applicable by virtue of Section 17 of the Act, which provides that any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purpose of this section, be deemed to have been refused. In prayer clause the Respondent No,1 claimed the decree of Haq Mehr in question i,e, 06- Marla House at Sharif Park, Ferozwala. The Petitioner filed written statement and denied all the allegations including the entitlement/claim of Respondent No,1 regarding said house in question. On conclusion of trial, the learned Judge Family Court while passing the judgment and decree dated 21.05.2014 in the said previous suit, only granted maintenance allowance to the minors, whereas the prayer regarding Haq Mehr in question was not acceded to. The Respondent No,1 had, at the relevant time, remedy of appeal available under the law but she failed to avail the same within the prescribed limitation period and as such, the judgment and decree dated 21.05.2014 passed by the learned Judg e Family Court attained finality . In view of the above legal position it is crystal clear that the subsequent suit claiming the Haq Mehr in question, which was not granted in the earlier suit, is barred by principle of res judicata. If the Respondent No,1 is allowed to continue with her suit that would tantamount to reopen the controversy and that too allow the Family Court to either set aside or modify the earlier judgment and decree. When confronted whether the Respondent No,1 has disclosed all these facts in the subsequent suit and whether she has fulfilled all the requirements of Section 7(2) & (3) of the Act read with Order XII, Rule 1 and Order VII, Rule 14, C.P.C., the learned Counsel for the Respondent could not give any tangible reply .
7. In view of above, this Petition is allowed and the order dated 20.06.2017, passed by learned Judge Family Court, Ferozwala, is set aside. Consequently plaint of the suit filed by the Respondent No,1 is rejected under Order VII, Rule 1 1, C.P .C.