JUDGMENT MUHAMMAD MUNIR KHAN, J. This Intra-Court Appeal No.39 of 1990 arises from the judgment of learned Single Judge in Chamber whereby he on 10.6.1990 dismissed the writ of habeas (W.P. No. 1045-90) filed by Mst. Fazlan Mai, appellant- petitioner, for the recovery of her minor children, namely, chahir aged 5 years, Mst. Hasina Mai aged 3 years and Baqir aged 1 years from the alleged illegal/improper custody of their father Rubnawaz, respondent.
2. The appellant is the second wife of the respondent. A year ago the respondent herein contracted third marriage so the relations between the spouses became strained. The respondent turned her out of his house. He detained two children, namely, Chakir and Mst. Hasina Mai with him. She was, however, allowed to lake Baqir with her. Subsequently, Baqir was also deceitfully removed by the respondent from the custody of his mothcr/appellanl so she filed Writ Petition No. 1045-90 for the recorery of her minor children which was dismissed by the learned Single Judge on 10.6.1990 mainly on the ground that controversy between the parties required recording of evidence and investigation which was not possible in the writ jurisdiction.
3. Learned counsel for the appellant submitted that Undisputedly the children arc under the are of 7 years the appellant being their mother has the right of Hizanat of her children and that there being no controversy with regard to the facts relevant for the adjudication of the writ petition there was no need to record evidence or to hold any investigation. He further argued that the writ of suil was decreed ex parte on 15.6.1985. Feeling aggrieved thereby, Muhammad Bakhsh and Ahmed Bakhsh, respondents, filed a revision, which was accepted by the learned Addl. District Judge, Layyah, on 15.7.1990, on the ground that since the claim of the applicant was not based on any written contract, therefore, it was beyond the jurisdiction of the conciliation Council to try the same.
Hence this petition.
3. The learned counsel for the petitioner mainly argued that Jhc suit filed bv the petitioner falls in Scction-B, Part-1 of the Schedule of the,Conciliation Courts Ordinance 1965, therefore, the same could only be referred to conciliation under Conciliation of Courts Ordinance 1965, and Civil Court has no jurisdiction to try it and that the findings of the learned Addl. District Judge is totally against the facts and law. The learned counsel for the respondents has not been able to controvert the arguments addressed bv the learned counsel for the petitioner.
4. I have considered the matter carefully. I feel persuaded to agree with the learned counsel for the petitioner. I find that the suit of the petitioner for the recovery of Rs.5,000/- as damages to his erops as a result of the act of the respondents/defendants demolishing the water-course falls under the category of suit mentioned at. No.3 of Seclion-B of Part-1 of the Schedule and not under the category of suil mentioned at- No. 1 of Seclion-B of the Schedule and, as such, the same was exclusively triable by the Consiliation Court and not by the Civil Court. The relevant provisions of law may be re-produced advantageously: ~ S.3.- "Cases referable to conciliation.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 189S), or in the Code of Civil Procedure. 1908 (Ad V of 1908)':-- '(a) All cases falling under Part-1 of the Schedule shall, save as otherwise provided, hereindlter be referred to conciliation under this Ordinance, and no civil or criminalCourt shall have-jurisdiction to try any such case."
SCHEDULE Part-1 Section B-Civil cases.
(1) "Suit for the recovery of money due on contracts, receipts or other documents.
(2) Suit for the recovery of movable property, or for the value thereof.
(3) Suil for compensation for wrongfully taking or damaging movable properly."
5. Pursuant to the above discussion, the petition is accepted and the judgment/decree passed by the learned Addl. District Judge, Layyah, respondent No.3, is declared to be illeual without lawful authority and of no legal effect. Since the learned Addl. District Judge has not decided the revision on merits, so the
7. Even otherwise, I do not feel inclined to exercise the constitutional powers of this Court in aid of the petitioners inasmuch as they fully knew that giving and taking of " was "Harram" in Islam when they applied for the loan agreed to' pay " ", received the loan with interest and utilized the same, so now when they have been asked to pay what they had agreed to pay, it does not lie in their mouth to refuse/avoid to pay the same saying that it was/is "Harram" in Islam. Let it be made clear that neither l am in favour of interest" " nor 1 consider it as " However, I am of the view that he, who does not want to pay interest" " he should not accept the loan with interest dccctifuily. If he applies for the loan, consciously agree to pay the interest on it then he should not resile from his promise on the pretext that the interest is "Harram" in Islam.
8. Pursuant to the above discussion. I do not sec any justification to interfere in exercise of the Constitutional powers of this Court with the action taken/noliccs issued by the respondents for the recovery of loan with interest agiansl/fo the petitioners, so all these petitions are dismissed leaving the parties to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.