' Through this Constitutional Petition, Mst. Sahib Khatoon petitioner wants this Court to declare the judgments and decrees passed by Judge Family Court and Additional District Judge, Sargodha on 11-2-1984 and 4-11-1984 respectively so far as the condition of payment of Rs.5,000 as consideration for dissolution on the basis of Khula, to be without lawful authority and of no legal effect:
2. The facts leading upto this petition are that on 3-2-1982 Mst. Sahib Khatoon filed, suit against Gul Muhammad respondent No.3 before Judge Family Court, Sargodha respondent No.1 for the dissolution of her marriage. Gul Muhammad respondent also filed suit for restitution of conjugal rights against the petitioner. The suits were consolidated. The trial Court framed four issues.The parties led their evidence Mst. Sahib Khatoon produced Ahma P.W.1, Mehr Khan P.W.2 and herself appeared as P.W.3. The respondent/husband appeared as D.W.3 and produced Abdul Khaliq D.W.1 and Nizam Din D.W.2. The trial Court vide its judgment and decree, dated 11-2-1984 decreed the suit on the basis of Khula subject to payment of Rs.5,000 by the wife to the husband and dismissed the suit for the restitution of conjugal rights. Feeling aggrieved of this judgment and decree, Gul Muhammad respondent filed Writ Petition No.780 of 1989 which was dismissed in limine on 25-3- 1984. In this order it was observed that the trial Court had taken into consideration the benefit derived by the respondent and ordered its restoration. Mst. Sahib Khatoon also filed appeal before the District Judge challenging the condition of payment of Rs.5,000 as consideration for the dissolution of her marriage which was dismissed by Additional District Judge, Sargodha on 4-11- 1984, hence this petition.
3. The learned counsel for the petitioner submits that there was no evidence on record that the petitioner had derived benefit of Rs.5,000 from the husband at the time of Nikah and as such the order to that extent has been passed illegally and without lawful authority. Conversely the learned counsel for the respondent supported the judgment of the Courts below.
4. I have considered the arguments advanced by the learned counsel for the parties with care. I have not been able to persuade myself to agree with the learned counsel for the petitioner/plaintiff. I find that the Nikah has been dissolved on the ground of Khula and as such the trial Court had to determine the consideration for the marriage; that the Courts below had taken into account the evidence on record and A the attending circumstances relatable to the benefits derived by the wife/petitioner. Learned counsel has failed to point out any misreading/ non- reading of evidence by the Courts below. In view of the evidence brought on record it cannot be said that there was no evidence with regard to the consideration for the marriage between the parties. The submissions made by the learned counsel related to the appreciation of evidence and I in writ jurisdiction do not desire to interfere with the same. The Courts below have not flouted the provisions of relevant law and have considered the question of Khula in accordance with the guide-lines given by the superior Courts.
5. For what has been stated above, there being no merit, the petition is dismissed leaving the parties to bear their own costs.
Writ refused.
1983 CLC 2919 [Lahore] Before Muhammad Afzal Lone, J MUHAMMAD ALAMGIR and others--Petitioners versus MUHAMMAD IQBAL and others--Respondents Civil Revision No.213 of 1985, decided on 26th March, 1985. Civil Procedure Code (V of 1908)-- ---Ss. 12(2), 114 & 115 and O.XLVII, r.1--Limitation Act (IX of 1908), Arts. 173 & 181--Review petition-- Limitation--Application under section 12(2), C.P.C.--Limitation--Review petition filed under 5.114 and O.XLVII, r.1, C.P.C.--Limitation would be governed by Art. 173, Limitation Act, 1908--Application under S.12(2), Civil Procedure Code, 1908 could not be treated as review petition--Limitation would be governed by Art.181 of Limitation Act, 1908--Application under S.12(2) having been filed within three years of judgment, held, was well in time. [p.2920] A Sikandar v. Saleh Muhammad 1983 CLC 1590 ref.
Malik Inayat Ullah Khan v. Government of Pakistan PLD 1985 Pesh. 23 rel.
Kh. Saeed-uz-Zafar for Petitioners.
Muhammad Iqbal Chaudhry for Respondent No.4. Date of hearing: 26th March, 1985.
' An application filed by the petitioners under section 12(2), C.P.C., challenging the validity of the judgment and decree, dated 4-2-1985, was dismissed by the learned trial Court by order, dated 14- 1-1985 impugned through this revision, on the ground that it was barred by time. In holding so, it relied upon Sikandar v. Saleh Muhammad 1983 CLC 1590 in which a Division Bench of the Karachi High Court took the view that Article 173, governs the period of limitation for an application under section 12(2).
2. 1 have examined the record and heard the learned counsel for the petitioners and respondent No.4. Respondents Nos.1 and 3 have been heard in person. No one appears for respondent No.2 despite service through publication. He is, therefore, proceeded against ex parte.
3. My attention has been drawn by the petitioner's learned counsel to a Division Bench judgment of the Peshawar High Court in the case of Malik Inayat Ullah Khan v. Government of Pakistan reported as PLD 1985 Pesh. 23 wherein after considering the aforesaid judgment of the Karachi High Court, it has been held that an application under section 12(2) cannot be treated as a review petition and to such an application Article 181 of the Limitation Act applies. With respect entirely agree with the reasoning given in the Peshawar judgment. Even the learned counsel for respondent No.4 agrees that Article 181 is applicable and not Article 173. The application in question having been filed within three years of the impugned judgment and decree, is well within time.
4. Accordingly this revision petition is accepted, impugned order set aside and the case is remanded to the learned trial Court for its, disposal on merits in accordance with law. The parties are left to bear their own costs.