SHAHID BILAL HASSAN, J. Succinctly , the respondent No. 3 instituted a suit for recovery of dower alleging therein that she was married to Muhammad Saleem Khan on 18.01.1960 and her dower was bungalow No. 10, situated in Officers Colony , Rahim Yar Khan cash Rs. 50,000/-, 150 tolas gold ornaments, 1733 kanals agricultural land situated in District Rahim 'Yar Khan and an amount of Rs. 100/-.monthly as pocket money; that at the time of Nikah Faiz Mahmood Khan, father in-law of the plaintif f-respondent No. 3 was owner of house No. 10 situated in Officers Colony , Rahim Yar Khan: that the amount of dower was mentioned in Nikahnama and owner of above-said plot signed Nikahnama as surety; that surety had been considering the plaintif f-respondent No. 3 as owner of the above-said bungalow; that her father-in-law Faiz Mahmood Khan died in the year 1977, whereas the alongwith her sons started residing in Multan due to strained relations with her husband; that subsequently , defendants- petitioners started claiming that they were owners of the bungalow being real heirs of Faiz Mahmood Khan (surety); that the other part of dower/agricultural land given to her (respondent No. 3) was transferred in her name; that the petitioners-defendants started demolishing house in 1997, therefore, she instituted a suit for declaration and permanent injunction; same was pending in Civil Court at Rahim Yar Khan. It was prayed that a decree for recovery of Haq-ul-Mehr in respect of house No. 10 situated in Officers Colony , Rahim Yar Khan and cash of Rs. 50,000/- be passed in favour of the plaintif f-respondent No. 3.
The petitioners and other defendants were summoned but they did not appear , so after publication of Court notice in newspaper , they were proceeded against ex parte on 07.04.2000. The petitioners moved an application under Rule 13 of the Punjab Family Courts Rules, 1965 on 01.05.2000 for setting aside ex parte proceedings, which was duly resisted by the respondent No. 3 while submitting written reply . The learned Trial Court vide order dated 23.11.2000 accepted the said application subject to costs of Rs. 300/-. The petitioners could not submit the written statement, so the learned Trial Court vide impugned order dated 20.10.2000 struck off their right of defence and adjourned the matter for arguments for 11.11.2000. The petitioners moved an application under Rule 13 of the Punjab Family Courts Rules, 1965 for recalling of order dated 20.10.2000 before the learned Trial Court, but the same was dismissed vide order dated 04.01.2001. Against the said order , the petitioners except petitioner No. 2 preferred an appeal, but the same was dismissed vide impugned judgment dated 22.11.2001. Later on, Muhammad Saleem Khan Khakwani, Jamshaid Mahmood Khan Khakwani and Ayaz Mahmood Khan Khakwani filed writ petition No. 8200-F of 2001 before this Court, which was dismissed in limine on 05.10.2001, whereafter Intra-Court Appeal bearing No. 199 of 2001/ Multan was filed but the same was dismissed on 24.01.2002 while holding it to be incompetent. Thereafter , a Civil Miscellaneous Petition No. 174 of 2002/Multan was filed before this Court, but the same was dismissed on 24.03.2005 by a Division Bench of this Court. On 11.11.2000. the petitioners except No. 2 filed their joint written statem ent before the learned Trial Court and also submitted an application for proposed issues, but the same was got removed upon which they filed an application on 03.02.2001 for holding a probe into the loss of written statement with proposed issues but the said request remained unattended. As per facts written in the instant petition, upon death of Mst. Safia Bibi, defendant No. 13, her legal representatives were impleaded and the petitioners alongwith them except petitioner No. 2 filed their joint amended written statement on 31.05.2003 together with an application of proposed issues but on objection of learned counsel for the respondent/plaintif f, the learned Trial Court recalled the earlier order for filing of amended written statement vide impugned order dated 24.03.2004 besides dismissing three other applications. The petitioners except No. 2 preferred appeals against the said order, but the same were dismissed on 22.05.2004 being not maintainable against interlocutory order . However , after recording evidence of the respondent No. 3, the learned Trial Court proceeded to decree the suit in her favour vide impugned judgment and decree dated 07.06.2006. The petitioners being aggrieved of the said judgment and decree preferred an appeal under Section 14 of the Family Courts Act, 1964 and also assailed legality , validity and correctness of impugned interlocutory orders dated 07,04.2000, 20.10.2000, 04.02.2001 and 24.03.2004, but the learned Appellate Court vide impugned judgment and decree dated 26.07.2007 dismissed the appeal; hence, the instant Constitutional petition calling into question the impugned judgments and decrees together with interlocutory orders dated 07.04 .2000, 20.10.2000, 04.02.2001 and 24.03.2004 passed by the learned Trial Court.
2. Learned counsel for the petitioners has argued that the impugned judgments and decrees and illegal, unlawful and without jurisdiction as well as against the evidence on record; that the learned Trial Court has acted contrary to law and the norms of justice, all the adverse interlocutory orders have been passe d against the petitioners illegally and unlawfully; that claim as raised and asserted by the respondent No. 3 with regard to bungalow in question is relatable to a suit of declaratory nature which is triable only and exclusively by a Civil Court and not by a Judge Family Court, hence, the trial from the inception to the end is illegal, unlawful, without jurisdiction and sans lawful authority; that the Kabin-nama (Ex.P1) which was produced by the respondent No. 3 subject to the objection of petitioners is neither a Nikahnama nor a public document and it is neither signed by the respondent No. 3/plaintif f nor by P.W.1 and P.W.2, thus, it is inadmissible in evidence for it being not proved in evidence as required by law, even no Nikahnama was brought on record but even then the learned Courts below by misconstruing law on the subject passed by the impugned judgmen ts and decrees. Adds that respondent No. 3/plaintif f has admittedly never made a demand for payment of Rs, 50,000/- as a dower from her husband namely Muhammad Saleem Khan- defendant No. I in his life-time till his death occurred on 22nd May, 2004, thus, there arises no cause of action and locus standi to her to institute suit on 22.12.1999 against the petitioners even for recovery of alleged dower amount Rs. 50,000/-; that Kothi No. 10 of the Officers Colony in Rahim Yar Khan was never settled as a dower , so the matter did not fall within the ambit of Family Courts Act, 1964 and the learned Family Court had no jurisdiction to adjudicate upon the same; that written statement Ex.P4 and written reply Ex.P5 of Muhammad Saleem Khan could not be useful until and unless the concerned person was examined, thus, the learn ed Trial Court erred to refer and use those documents; that the impugned order dated 20.10.2000 for striking off right of defence of petitioners except No. 2 on alleged non-filing of written statement was not only illegal and unlawful but also unwarranted by law and facts; that the learned Trial Court did not follow the procedure provided under Family Courts Act, 1964 and Rules framed thereunder while conducting proceedings because no pre-trial and post-trial reconciliation proceedings were ever conducted, hence, the proceedings are against law; that the adjournment of proceedings of the suit in the Trial Court from 06.10.200 0 to 20.10.2000 in fact provided only one and the first and not the last opportunity for filing of written statement and the said adjournment was made and done by the learned Trial Court in its routine order , thus, no penal provision of Order VIII, Rule 10 of the CPC could be invoked, thus, the petitioners were knocked out merely on technical ground and in a haste and contrary to law on the subject, even the period of that adjournment was 15 days or so. Submitted that it was well-settled law that dower once paid could not be claimed again through a family suit hence, the suit was bad in law; that the amended written statement was available on record of suit file which was duly entertained and received by learned Judge Family Court and the successor-in-of fice had no jurisdiction to recall and review the order of his predecessor , hence, the impugned order dated 24.03.2004 was also illegal and unlawful; that all the interlocutory orders which have had adverse effect upon the rights of the petitioners are also assa iled through this petition; that the impugned judgments and decrees are outcome of misreading and non-reading of evidence; that valuable rights of the petitioners are involved and they cannot be ousted mere on the basis of technicalities. Even Kabin-nama being not a public document rather private one, its execution is yet to be proved: that the learned Appellate Court has not considered the case-law submitted by the petitioners' counsel and did not determine the points involved in the matter while applying independent judicious mind; that the impugned judgment and decree passed by the learned Appellate Court does not comply with Order XLI, Rule 31 of the CPC, hence, the same is bad in law. Wrong presumption has been drawn from the Kabin-nama (Ex.P1) by the learned Appellate Court; hence, the learned Courts below have failed to exercise vested jurisdiction, rather have exercised that jurisdiction which was not conferred upon them. Thus, while allowing the Constitutional petition in hand, impugn ed interlocutory orders as well as impugned judgments and decrees may be set aside and suit of the respondent No. 3 may be dismissed or in the alternative the suit may be remanded to the learned Trial Court for its decision afresh on merits.
3. On the contrary , learned counsel representing the respondent. No. 3 has supported the impugned judgments and decrees and has prayed for dismissal of the Constitutional petition in hand.
4. Heard.
5. Kabeen Nama according to the Feroze-ul-Lughat (New Edition)-Ferozesons Ltd. means "document of dower" .
Under Section 5 of the Punjab Family Courts Act, 1964, Family Court enjoys exclusive jurisdiction to try matters reckoned in the First Schedule. "Dower" being an item mentioned in the schedule the exclusive jurisdiction to entertain the present suit is with the Family Court. The jurisdiction vested in Courts under special law i.e. Punjab Family Courts Act, 1964, oust the plenary jurisdiction of Civil Courts. As such, the argument that the Family Court has no jurisdiction to adjudicate upon the matter in hand has no force and same is discarded. Reliance is placed on Kh. Suhail Ahmad and others v . Mst. Shabana (2011 CLC 1531 Lahore).
6. Now, adverting to the impugned order dated 20.10.2000 when the right of defen ce of the petitioners was struck off, it is observed that for the first time the learned Judge Family Court required submission of written statement on 06.10.2000 and suit was adjourned for 20.10.2000, but on the said date, the petitioners could not submit the written statement, so their right of defence was struck off, which order was assailed before the learned Appellate Court and thereafter before this Court by some of the petitioners, but no copy of appeal or of writ, petition allegedly filed before the learned Appellate Court and this Court, respectively , has been placed on record by either of the side, thus, it is presumed that the same would have been dismissed being filed against interlocutory orders, which were barred under Section 14(3) of the Family Courts Act. 1964, because said provision of law provides that no appeal would lie against an interlocutory order and the allegory of that is to decide the cases of family nature at the earliest, but when the said order was assailed in appeal before the learned Appe llate Court after passing of final decree in favour of the respondent No. 3 by the petitioners, the learned Appellate Court, despite the fact that it had jurisdiction to adjudicate upon the same as the case reopens before the Appellate Court and the Court of appeal can consider and determine the points of facts in large perspective' and in the interest of justice, has declined to interfere in the interlocutory orders presuming that the same have attained finality as Constitutional petition of some of the petitioners was dismissed in limine by this Court against the said order of striking off the right of defence of petitioners; this approach is against the spirit of law because the first Appellate Court can go into all questions of law and fact and can lawfully reconsider and re-determine any interlocutory order passed by the learned Trial Court. While proceeding to decide the appeal, the learned Appellate Court could not be influenced by the fact that an earlier appeal, revision or Constitut ional petition against the interlocutory order was dismissed. In Mst.
Khurshid Begum and others v . Ahmad Bakhsh and others (PLI) 1985 Supreme Court 405) , it was held that:- "There is, however , no force in this contention because when an appeal is filed against the ultimate decision the whole case including all the interim orders passed in the case get re-opened and can be challenged before the Court of appeal hearing the appeal filed against the final decision whereby the suit was ultimately disposed of.'
Same view was reiterated in Shamshad Khan and another v . Arif Ashraf Khan and 2 others (2008 SCMR 269 ).
Besides, though the Family Court can adopt any of the methodology and provisions of Code of Civil Procedure, 1908 are not applicable to its proceedings, but for administration of justice fair and sufficient opportunity is required to be afforded to either of the party and the method so adopted should not be illegal nor expressly barred by West Pakistan Family Courts Act, 1964. In the present case, the learned Trial Court did not conduct pre-trial and post- trial reconciliation proceedings, which is an illegality because after such failure the Court can proceed further and pronounce judgment as has been held in Farzana Rasool and 3 others v. Dr. Muhammad Bashir and others (2011 SCMR 1361 ) and Mst. Zohran Bibi v. Manzoor Ahmed and 2 others (PLD 1975 Lahore 318), but as stated above, after setting aside of ex park proceedings vide order dated 23.09.2000, for the first time on 06.10.2000 after handing over copies of plaint and other ancillary documents, the learned Trial Court required the petitioners to submit their written statement on 20.10.2000 but when they failed to submit the same, their right of defence was struck off, which order is harsh rather lethal especially when the document basing the claim of the respondent No. 3 is not a public document and the nature of the same is of private one and same was required to be proved as per mandate of law of evidence, the petitioners ought to have been granted fair and sufficient opportunity to submit their defence and lead evidence in support of their contention, because law favours decision on merits rather than on the basis of technicalities unless the party is guilty of gross negligence, but here the case is otherwise as is evident from the order sheet of the learned Trial Court that the petitioners vigilantly pursued their case but due to striking off of their defence in an exacting way, they could not submit their written statement and lead evidence and only conducted cross-examination on the witnesses produced by the respondent No. 3.
Reliance is placed on Nooral Amin and another v. Muhammad Hashim and 27 others (1992 SCMR 1744 ), Zahoor Ahmed v. Mehra through Legal Heirs and others (1999 SCMR 105) and Mst. Bundi Begum v. Munshi Khan and others (PLD 2004 Supreme Court 154).
7. At the cost of repetition, it is observed that at appellate stage the case reopens and the learned Appellate Court can dilate upon each and every aspect of the case including the interlocutory orders and determine their legality and validity , but the learned Appellate Court by misconstruing true perspective of law on the subject got rid of the appeal giving observation that interlocutory order pertaining to striking off right of defence of the petitioners was challenged upto High Court, so the same could not be reopened; such approach is not in consonance with the doctrine settled by the higher Courts as referred above.
8. As the foundational order dated 20.10.2000 is not as per requirement of law, the subsequent impugned orders as well as impugned judgments and decrees also cannot be allowed to hold field further. Even the judgment rendered by the learned Appellate Court cannot be said to be upto the dexterity and as per mandate of Section 24-A of the General Clauses Act, 1897. As such, both the learned Courts below have failed to exercise vested jurisdiction and have exercised that jurisdiction which was not conferred upon them and have committed material illegality; thus, when the position is as such, this Court has ample jurisdiction to make interfere nce in the same in exercise of Constitutional jurisdiction.
9. The crux of above discussion is that, the Constitutional petition in hand is allowed, impugned judgments and decrees together with the impugned interlocutory orders ibid are set aside and case is remanded to the learned Trial Court where the same will be deemed to be pending with a direction to obtain written statement of the petitioners, frame issues, record evidence and decide the lis afresh on merits in accordance with law .
10. Before parting with this order , it is observed that the case is an old one, so it is expected that the learned Trial Court will decide the same at the earliest preferably within a period of six months from the date of receipt of certified copy of the order of this Court.