1. CHAUDHAR Y KHALID YOUSAF , J.----The captioned revision petition has been filed against the judgment dated 04.04.2018, passed by the learned District Judge Muzaf farabad, whereby order dated 30.11.2017, passed by the learned Senior Civil Judge Muzaf farabad, has been maintained.
2. Precise facts of the instant case are that plaintif f-respondent herein filed a suit for declaration-cum-perpetual injunction before the court of Senior Civil Judge Muzaf farabad stating therein that plaintif f-respondent got married with Khawaja Ejaz Ahmed in the year 1986. It has been further stated that the husband of the plaintif f-respondent was died and plaintif f-respondent solemnized second marriage with Riaz Ahmed on 15.05.2010 in lieu of dower amount of Rs.600000/- in shape of house comprising survey Nos. 889min old, 910min new, 885 old, 909min new and 786/887 old, 910 new, measuring 1-1/4 marla situated in Madina Market consisting of 3 rooms, kitchen, bathroom and veranda and in this regard an agreement dated 10.06.2010 was executed. It has been further stated that husband of the plaintif f, was died on 09.04.2013 the defendants bent upon to dispossess her and wants to transfer the said property to someone else whereas they have no concerned with the disputed property as the plaintif f-respondent is owner and has possession of the suit land on the basis of agreement dated 10.06.2010 executed by the (deceased) husband.
3. During pendency of the suit the plaintif f-respondent herein submitted an applic ation for return of plaint under Orders XXIII, VII, Rule 10 of C.P.C, 1908 alleging therein that the plaint has been instituted at wrong forum as the matter involved in the present slut, relates to the dower and civil Court has no jurisdiction to decide the same and sought permission for institution of fresh suit at proper forum. Thereupon the trial court after inviting objections and hearing the parties allowed the applicatio n subject to payment of Rs.2000/- as cost and returned the plaint to the plaintif f with the permission to file the same before competent Court vide its order dated 30.11.2017. Feeling aggrieved from the said order defendants -appellants filed appeal before the Cour t of District Judge Muzaf farabad on 23.12.2017, whereby the learned District Judge Muzaf farabad upheld the said judgment while enhancing the cost as Rs.5000/- vide its judgment dated 04.04.2018, hence this revision petition.
4. Miss. Alia Abd-ur-Rehman, Advocate, the learned counsel for defendants-appellants herein reiterated the grounds taken in the memo. of appeal and contended that the disputed property has not been divided and the shares of legal heirs are yet to be determined. She further submitted that the question of jurisdiction of the court does not fall within the definition of formal defect. The learned counsel further argued that controversy involved in the instant case is of a civil nature and only civil court is competent to resolve the same. She next argued that the judgments passed by the courts below based on misconception of law and lastly prayed that impugned orders passed by the Courts below may be set-aside.
5. On the other hand, Mr. Kamran Baig, Advocate, the learned counsel for respondent, has opposed the revision petition and submitted that property in dispute has been transferred to plaintif f-respondent in lieu of dower and the same has been under possession of plaintif f-respondent since 2010. Learned counsel further contended that after return of the plaint the plaintif f-respondent has filed a suit before Judge Family Court Muzaf farabad. Learned counsel further argued that order passed by the subordinate Courts are patently legal because the instant suit pertains to the dower and only family Court is competent to decide the same, therefore, subordinate Courts did not commit any illegality or perversity while accepting the application and allowing the plaintif f-respondent to file fresh suit before competent Court i.e. Family Court and lastly prayed for dismissal of the revision petition.
6. I have heard the learned counsel for the parties and gone through the record of the case with due care.
7. In the instant case, the plaintif f-respondent herein filed a declaratory suit along with perpetual injunction before the Court of Senior Civil Judge Muzaf farabad, on 19.02.2016, stating therein that she got married with Khawaja Ejaz Ahmed in year 1986, who was died and plaintif f-respondent solemnized second marriage with Riaz Ahmed on 15.05.2010 in lieu of dower amount of Rs.600000/- in shape of house situated in Madina Market consisting of 3 rooms, kitchen, bathroom and veranda and after death of her 2nd husband defendants are bent upon to dispossess her from the aforesaid house. During pendency of the suit plaintif f-respondent herein filed an application for return of her plaint on 29.09.2017, stating therein, that inadvertently the suit has been filed before wrong forum, therefore, the same may be returned to her with permission to institute the same before competent Court of law, whereby the suit of petitione r was returned to her subject to paymen t of cost Rs.2000/- vide its order dated 30.11.2017. Feeling aggrieved from the said order defendants-appellants filed an appeal before District Judge Muzaf farabad, on 23.12.2017, whereby , the order passed by the Senior Civil Judge Muzaf farabad was kept intact vide its order dated 04.04.2018.
8. The moot point involved in the instant case is that whether the case/dispute pertains to property given in lieu of dower is triable by the civil Court or Family Court? No doubt Family Court has exclusive jurisdiction under section 5 of Family Courts Act, 1993, to entertain and adjudicate all the matters which fall within the schedule of Family Courts Act, 1993 and the same includes dower . The dispute if arises between the spouses then of course Family Court is the right forum but if dispute arises between the spouse and third party regarding the property given in lieu of dower , then the Civil Court has the jurisdiction to resolve the said A controversy .
9. It is pertinent to mention here that in the case in hand, although the dispute betw een the parties pertains to the property alleged to be given in lieu of dower but the same was not between the spouses. The dispute arises between the widow and the third party i.e., brothers and sisters of her deceased husband. The subordinate Courts returned the suit by wrongly interpreting the judgment of the Hon'ble Apex Court reported as (PLD 2018 SC (AJ&K) 31). For proper appreciation the relevant portion of the supra mentioned judgment is reproduced as under;- "In view of the aforesaid settled position of law, it can safely be concluded that the dower once fixed between the spouses remains dower and even after its payment, if any dispute arises or the same is snatched by the husband, the Family Court alone has got jurisdiction to entertain and decide the matter . The suit before the Family Court for recovery of the dower will also be compe tent against any person, who stood as a guarantor for the payment of the dower , however , we may clarify that if any dispute arises in respect of the property given in lieu of the dower , with any person other than the husband or the guarantor , then of course, the case would be decided by the Civil Court."
10. (underling is mine)
11. It has been resolved by the Hon'ble Apex Court that if the dispute arises in respect of property given in lieu of dower with any person other than husband and guarantor then the civil Court is the competent Court to decide the same. The same proposition came under consideration of the Hon'ble Apex Court in the case titled "Syed Iqbal Shah v . Syeda T ahira Bibi and 3 others (2019 MLD 576 ). The relevant portion is usefully reproduced as under: "The contention of Mr. Sajjad Ahmed Khan, the learned Advocate for the appellants that the Civil Court has got no jurisdiction in respect of the matters enumerated in the schedule of Family Courts Act, 1993, is also not attracted to the facts of the case in hand. We have clarified the position in Shahzad Rauf's case PLD 2018 SC (AJ&K) 31 wherein, at page 41 of the report it is observed by this Court that if the dispute regarding payment of the dower is between husband and the wife, then no other Court except Family Court can entertain the suit and even on the basis of entries made in the Nikahnama, the decree of possession can be award ed by the family . Court. In this regard, reliance was placed on the cases reported as Liaqat Ali v. Additional District Judge, Narowal and 2 others [1997 SCMR 1122] and Muhammd Arif and others v. District and Sessions Judge, Sialkot and others [2011 SCMR 1591 ]. However , we also held that if the controve rsy regarding payment of the dower in respect of any property arises between spouse and, the third party , then Civil Court is an approp riate forum for determination of the matter ."
12. (underlining is mine)
13. In the instant case, although the dispute pertains to the dower but it is arisen between the widow and the third party after the death of her husband. Therefore, in view of the dictum laid down by the Hon'ble C Apex Court in the cases referred above Civil Court is the appropriate forum to decide the matter .
14. The crux of above discussion is that by accepting the instant revision petition the order passed by the subordinate courts dated 04.04.2018, and 30.11.2017, respectively are hereby set-aside and the suit pending before Judge Family Court Muzaf farabad shall stand transferred to the Court of Senior Civil Judge Muzaf farabad, who shall decide the same on merits.