This judgment will dispose of two connected Writ Petitions No. 795 of 1992 titled `Mst. Asia v. Abdul Rahman and another' and W.P. No. 1181 of 1993 titled 'Abdul Rahman v. Additional District Judge, Islamabad and others' as they arise out of the same judgment and decree.
2. Mst. Asia daughter of Muhammad Siddique, the petitioner, was married to Abdul Rahman respondent No.l on 1-3-1984. At the time of marriage an amount of rupees one lac was fixed as dower amount which was shown to have been paid at the time of Nikah by giving of house No. 311, Sector I-10/4 to her in lieu of dower as per entry in column No. 15 of the Nikahnama Exh.Pl. After marriage the parties lived together as husband and wife in the same house for a certain period of time and two children have been born out of the wedlock. Subsequently, however, relations, between the spouses appear to have become strained as a result of first marriage of the respondent which fact according to the petitioner was not disclosed at the time of her marriage and hence she was allegedly turned out of his house by the respondent. She filed a suit seeking grant of decree for possession and rendition of accounts regarding the aforementioned house claiming ownership therein as having been gifted to her in lieu of her dower at the time of Nikah of which she had illegally been deprived of and a portion thereof had also been rented out to a tenant. This suit has been contested by the respondent No.l. One of the main objections raised in the written statement is that although the house in question was given to the plaintiff in lieu of dower at the time of Nikah yet subsequently the defendant had been sending lot of money to the plaintiff through bank drafts which money was deposited in her Account No.40461 and was adjusted against dower amount of rupees one lac, hence the plaintiff is left with no claim on the house in question. It is also contended that at the time of Nikah, the house was Katcha, and it is later on that it has been constructed into a double storey building, the current value whereof is not lets than fifteen lacs, therefore, the suit is liable to be dismissed. Paragraph No. 3 of the plaint which contains averments of the claim and ownership of the plaintiff and paragraph No. 3 of the written statement is reproduced as under:- Paragraph No. 3 of the Plaint: "That at the time of marriage the dower was fixed as Rs.100,000 whichwas paid in the shape of the house with the following words as mentioned in the column No. 15 of the Nikahnama:-- "The bridegroom has given his house No.311, Sector 1-10/4, Islamabad, to his wife. in lieu of Haq- Mahr."
Paragracth No. 3 of the Written Statement.
"Correct to the extent that a sum of Rs.1,00,000 was fixed as dower simply for the reasons that defendant was previously married. The other relatives of plaintiff-are also married.
It is pertinent to mention here that this high amount of dower was never fixed for any of her kins. It is, further correct that house mentioned in the plaint was given to the plaintiff in lieu of dower at the time of the Nikah but later when the defendant proceeded abroad for work of gain, the defendant sent a lot of money to the plaintiff, through bank which Account No. 40461 (H.B:L. Ganjmandi Branch) operated by her. This sum of money was adjusted against the dower leaving no claim of the plaintiff on the house. It may further be pointed out here that at the time of the Nikah the house was Katcha and was not properly constructed but later on it was constructed by the defendant to the extent of 2 storeys and has the current market value of Rs.15,00,000. The suit is filed with mala fide intention to harass the defendant and to create problem for the defendant on settled issues."
On the basis of pleading of the parties, learned trial Court settled the following issues:--
(1) Whether the plaintiff is entitled to get the possession of house No. 311, Sector I-10/4, Islamabad in lieu of dower? OPP
(2) Whether the plaintiff is entitled to get the rent of the disputed house recovered by the defendant from 1st March, 1984? OPP
(3) Whether the' suit is not maintainable in its present form? OPD
(4) Whether the suit is not properly valued for the purposes of court-fee and jurisdiction? OPD
(5) Relief.
In support of their respective case, the plaintiff herself appeared. as P.W. 1 and produced in evidence Nikahnama Exh. Pl. In cross-examination she stated that the house at the time of Nikah was single storey but now it is double- storeyed building. She has also stated in examination-in- chief that the house in question has not been formally transferred in her name and is still in possession and control of the defendant although it was given to her in lieu of dower at the time of Nikah. Abdul Rahman defendant has appeared as D:W.1 and has stated that the dower amount of rupees one lac was fixed at the tine of Nikah which amount has been received subsequently by the plaintiff through her father through bank drafts and, therefore, nothing out of the dower amount is due against him. In cross-examination, he has stated that Nikahnama Exh.Pl bears his signature and that right from 1984 house No. 311 which is his personal property is in his possession and that this house is owned by him. He has denied the suggestion that he has given this house to the petitioner in lieu of dower -at the time of Nikah. Learned Civil Judge 1st Class/Judge Family Court, Islamabad vide judgment and decree dated 31-5-1992 decreed the suit in favour of the plaintiff- petitioner for possession of the house. However, suit to the extent of claim of rendition of accounts; was dismissed. Aggrieved of this judgment and decree, the defendant-respondent filed an appeal in District Courts of Islamabad which was partly allowed by learned Additional District Judge, Islamabad, vide judgment and decree dated 4-10-1992, and the decree for possession of the house has been modified and has been converted into a decree for payment of rupees one lac as being the dower amount. Hence the plaintiff has filed this Constitutional petition to challenge the aforementioned judgment and decree passed by the learned Additional District Judge, seeking setting aside of the same and restoration of the judgment and decree rendered by the learned trial Court whereas Abdul Rahman, respondent has filed Writ Petition No.1181 of 1993 seeking setting aside of the judgment and decree rendered by both the Courts below and dismissal of the suit in toto mainly on the ground that the suit for possession was not triable 'by the learned Judge Family Court and, therefore, no decree for possession could have been passed by the said Court and that a decree for payment of rupees one lac as dower could not have been passed in favour of the plaintiff-petitioner as the dower amount has been alleged to have been paid at the time of Nikah, nor any such decree was aimed in the suit filed by her.
3. Mrs. Afshan Ghazanfar, Advocate has appeared on behalf of the petitioner in W.P. No. 795/92 who is respondent No.l in W.P. No. 1181/93. M/s. Muhammad Munir Peracha and Sardar Liaqat Ali, Advocates have appeared on behalf of Abdul Rahman, respondent No.1 in W.P. No. 795/92, who is petitioner in W.P. No. 1181/93. With consent of learned counsel for the parties, both the writ petitions are being disposed of by this consolidated judgment after hearing consolidated arguments in both the cases.
4. 1 had heard the arguments in both the writ petitions on 6-2-1994, and had accepted Writ Petition No. 795/92 and dismissed Writ Petition No. 1181 of 1993 vide an order orally announced. However, while dictating the judgment, it was felt that entry of column No. 15 of Nikahnama requires further clarification and, therefore, the order referred to above was recalled and the writ petitions were fixed for rehearing, which were reheard on 12-2-1994 on which date statements of. the parties who were present in person were also recorded.
5. In support of her case, learned counsel for petitioner has argued that as per entry Nos. 13 and 15 of Nikahnama Exh.Pl, it stands established that the house in dispute was given/teed to the petitioner in lieu of dower at the time of Nikah and this fact is also admitted in the written statement. She further argued that the plea taken by the respondent with regard to the subsequent payment of the dower amount is not established on record and, therefore, the learned trial Court in view of aforementioned admitted facts had rightly decreed the suit for possession of the house. It is contended that the judgment and decree rendered by the learned First Appellate Court is erroneous in law as there was absolutely no evidence on record to justify setting aside of the judgment and decree rendered by the learned trial Court merely because the plea of the respondent is that he has raised some construction after the house was given to the wife at the time of Nikah. Exact argument of the learned counsel for the petitioner is that once it is held that the house it question is owned by the plaintiff, any construction raised thereon will be beneficial accretion to the premises, therefore, will ensure for the benefit of the original owner, hence it cannot be a ground for non-suiting the owner who has claimed possession of her own property which is being illegally occupied and held by the respondent.
6. Learned counsel for the respondent No.l have argued that taking the suit as framed, it could not have been entertained and tried by the learned Judge Family Court as the house in dispute is alleged to have been given to the plaintiff at the time of marriage in lieu of dower, hence liability to pay dower having once been discharged, suit for recovery of possession of house on the basis of title and possession could only have been filed before the Civil Court and, therefore, the judgment and decree rendered by the learned trial Court as well as by the Appellate Court in the heirarchy provided under the West Pakistan Family Courts Act, 1964, are illegal and liable to be set aside as being coram non judice. Learned counsel has further contended that claim for payment of rupees one lac as dower amount is proved to have been satisfied by payment in cash, therefore, judgment and decree rendered by the learned appellate Court is also illegal. In the alternative it is argued that even if the suit for possession of the suit is held to be competent before the Family Court even then as only a single storey house is mentioned to have been given in lieu of dower at the time of Nikah, and presently instead of that house at site there is a newly constructed double- storeyed building, no relief could have been granted to the plaintiff-petitioner by both the Courts below.
7. In reply to the above arguments, learned counsel for the petitioner has contended that the suit as framed is for the recovery of dower which in this case is a house and hence as per provisions of section 5 of the Family Courts Act, 1964, read with Schedule thereto, it is the Family Court alone which has exclusive jurisdiction to try the suit: It is further contended that even if it is held that the suit is to be filed before the Civil Court, even then the learned trial Court held both the capacities and in fact the powers of Family Courts haven been conferred upon the learned Civil Judge 1st Class, who has passed the decree in this case and as such no grievance can be raised with regard to the jurisdiction of the Court merely because the suit has been tried and decreed by the learned Civil Judge as a Judge Family Court, particularly when no specific objection to the jurisdiction of the trial Court was raised either in the written statement or during the course of trial of the suit. In support of her contentions, the learned counsel has placed reliance on the following cases:--
(1) Piao Gul v. The State (PLD 1960 SC 307).
(2) Muhammad Ramzam v. Mst. Khalida Parveen (PLD 1971 Lahore 813).
(3) Aqeeluddin and 5 others v. Muhammad Rafiq (1984 CLC 2607).
Learned counsel further contends that the pleas raised by the respondent are self-contradictory.
On the one hand in the written statement he has admitted that the house in question was given to the plaintiff in lieu of dower but in his statement before the Court he has denied the suggestion and has contended that the dower amount was subsequently given to the plaintiff in cash although no proof has been brought on record of this case in support of this contention. Therefore, the contention of the respondent being absolutely false, the judgment and decree rendered by the learned trial Court is un--exceptional and is maintainable.
7. I have considered the arguments addressed by the learned counsel for the parties and have gone through their pleadings, evidence produced by them, judgments rendered by the two Courts below as well as the statements of the parties recorded before this Court on 12-2-1994. Entries Nos.
13 and 15 of the Nikahnama which relates to the fixation and payment of dower amount are reproduced as under:-- A perusal of the said entries clearly proves that at the time of Nikah, the amount of dower was fixed as rupees one lac. In lieu of this amount, house in dispute was given to the wife which mode of payment of dower is permissible under the law. The factum of fixation of the dower amount as well as giving of the house in dispute in lieu of dower as a whole is also admitted in the written statement, as is clear from the perusal of paragraph No.3, thereof, which hasbeen reproduced above. Plea of the respondent to the effect that subsequently, he has paid the dower amount in cash and, therefore, the plaintiff is left with no claim on the house in question is not established by any documentary evidence on record. Even otherwise, the house in question once having been given to the wife in lieu of dower could only have been retransferred by her and given to her husband with her own free will and unless and until the said house was transferred by any lawful mode, it cannot be said that the same has been ceased to be her property. Completion and legality of transfer of the house in Iieu of dower also stands established if the transaction in question is examined in the light of law declared in cases of Mst. Roshan Ara v. Mst. Badri Kamala and 9 others (1989 SCMR 1981), wherein the dispute was as to whether the suit property is proved to have been given to the wife by her husband in lieu of dower at pages 1981-82 of the report, it has been held as under:-- "The main controversy now raised to be solved relates to the findings of fact. The respondents' plea is that the suit property was given to her by her deceased husband in lieu of dower and that a subsequent acknowledgement in writing by the deceased husband was also duly executed.
After hearing the learned counsel in support of the points raised in the petition we are satisfied that there is no infirmity legal or otherwise in the impugned judgment. The criticism by the learned counsel regarding the deed of acknowledgement which has been accepted as proved and genuine, has no force. The gift relied upon from the petitioner's side in addition to the infirmities pointed out in the impugned judgment, is of no avail to the petitioner in view of the findings on the question of acknowledgment. Moreover, as held by this Court in the case of Mian Aziz A. Shaikh v.
The Commissioner of Income Tax (1989 PTD 894), the statement in the acknowledgment deed by the husband regarding the previous transfer of the property in lieu of dower, has force and petitioner's case put up before the trial Court has not been able to displace it. Accordingly this petition is dismissed and leave to appeal is refused."
Similarly in case of Nawab Mirza Muhammad Sadiq Ali Khan and others v. Nawab Fakr Jahan Begum and another (NLR 1990 SD 541) at pages 553-554 of the report, it has been held as under:-- "It is not disputed that the dower fixed on Fakr Jahan's -marriage was the sum of Rs.50,000 which she claimed from her husband's estate. The defence set up by Sadiq Ali and the other members of his branch of the family is that the debt was satisfied by payments made to her by Baqar Ali in his lifetime. It is admitted that she received sums of money from her husband which in the aggregate exceeded Rs.50,000 but these payments were made from time to time in varying amounts, the largest of which was only Rs.3,000. There is no evidence that Baqar Ali allocated any of these payments to the dower debt, nor was there any attempt at the trial to show that the lady accepted them as such. She referred in her deposition to `presents' received from her husband in addition to a liberal allowance, but it does not seem to have been suggested to her in cross-examination that any of these moneys were payments on accounts of dower. The dower deed was produced by her at the trial, and no payments are endorsed or noted upon it. There is in reality nothing in the evidence to rebut her claim. Reliance is placed upon the maxim, debitor non proesumitur donare, but their Lordships doubt if it has any application as between husband and wife---at all events when the relations between them are such as are established in the present case. It is certain that in many cases Baqar Ali did make presents to his wife quite irrespective of her dower, and it can hardly be presumed that a man in his position would desire to discharge such an obligation by driblets."
In case of Mst. Kaneez Bibi and another v. Sher Muhammad and 2 others (PLD 1991 SC 466), while determining the fact as to whether the property in dispute has been given to the wife as `Hiba-bil- Iwaz' in lieu of the marriage, it has been held that when the husband and wife are living together and the father of the husband was a donee in order to constitute a valid transfer, delivery of physical possession and active control of the property by the wife is not necessary to be proved as keeping in view the relationship between the parties. The gift will be completed by the declaration by the donor and acceptance by the donee. In his statement made before me, the respondent has again changed his stand taken in the written statement and in his statement before the trial Court, saying that the entires in the Nikahnama were made as a matter of prestige; meaning thereby that entries regarding giving of house in lieu of dower was just fake and sham and were never intended to be operative in not intent. This statement is contradictory to his pleadings and is falsified by documentary evidence on record, particularly, Nikahnama Exh.Pl. Judgment rendered by the lower appellate Court to the effect that half of the house was given in lieu of the dower, is misconceived and is not based on correct reading of the record. It is nobody's case that half of the house was given at the time of Nikah. I have myself asked the respondent as to whether he had given half of the house in question to the wife in lieu of dower? He has explained that it is the whole house which was written to have been given to the wife as a matter of prestige and that the said entry was in fact sham. This statement make it very clear that undisputedly the dower amount was fixed as rupees one lay and as the amount was not being paid in cash, the whole house in question was entered as having been given in lieu of dower at the time of Nikah and its value was mentioned as rupees two lacs. In view of above statement no ambiguity remains in relation to entry as contained in column No. 15 of Exh. P1 in regard to the extent of house transferred in favour of the plaintiff.
Paragraph 3 of the written statement as well as the memorandum of W.P. No.1181 of 1993 grounds A & B which are reproduced as under:--
(a) That the case of the plaintiff lady before the learned Judge Family Court was that in lieu of dower house No.311 Sector I/10/4, Islamabad was transferred by the petitioner in her favour. In such a situation, the dower amount shall the deemed to have been paid and it would not be recoverable as a dower amount. The respondent lady then would be entitled for the possession of the house if she has been dispossessed forcibly by the petitioner as is the case of the respondent lady in which situation, the Judge Family Court has no jurisdiction. The judgment passed by the learned trial Court is without lawful authority.
(b) That the judgment passed by the learned Additional District Judge too, in that eventuality would be without jurisdiction if the case of the respondent laid is taken as it is. As has been submitted earlier, the dower amount shall be deemed to have been paid and decree for dower then could not be passed and it will be Civil Court having the jurisdiction in the matter." also leave no doubt that the whole house in question was given in lieu of dower to the wife. Hence the findings rendered by the lower Appellate Court in this behalf are set aside and findings of the learned trial Court are restored and it is held that the whole house was given to the petitioner in lieu of dower at the time of Nikah.
9. Regarding objection of jurisdiction of the Family Court, in the case in hand, as is clear from the statement made by the respondent himself, it appears that although the house was declared to have been given to the wife in lieu of dower yet the respondent practically held the control thereof and the result is that although house in question has been given to the wife in lieu of dower and is her property is still in possession and control of the hasband and, hence the present suit for the recovery of dower could have been filed before the learned Judge Family Court who has exclusive jurisdiction in the matter, as is clear from the provisions of section 5 of the Family Courts Act, 1964, as well as the schedule thereto which are reproduced as under:- "Section 5. Subject to provisions of the Muslim Family Laws Ordinance, 1961, and the Conciliation Courts Ordinance, 1961, the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule."
SCHEDULE (Section 5)
2. Dower.
3------------------------------------------ 4------------------------------------------ 5------------------------------------------ 6------------------------------------------ 7...........................---------------------.
There is no distinction in forum for filing of a suit for recovery of dower in the Family Court with reference to its nature i.e. cash, kind or property movable or immovable. The word used in the schedule is "dower" which can be in cash, in kind and also in the shape of property, movable or immovable. If the suit relates to the recovery of the property which has been given to the wife in lieu of dower, it is for all intents and purposes a suit for recovery of dower and as such is triable by the Judge Family Court, therefore, the argument of the learned counsel for the respondent to the effect that the suit was not triable by the learned Judge Family Court is misconceived, and hence is repelled.
Even otherwise, entertainment and passing of a decree by the Judge Family Court who is also the Civil Judge materially affect the ultimate decree passed in the suit, in the light of the law declared in case of `Piao Gul'; 'Muhammad Ramzan' and `Aqeeluddin and 5 others', referred to supra. In case of `Piao Gul', where the order which was subject-matter of the writ petition, was shown to have been passed by the District Magistrate who was also a Political Agent and the offence was triable by the Political Agent in exercise of his powers as a Sessions Court, it has been held that if an authority enjoys both powers, misdescription of the correct authority in the order will not affect the validity of proceeding. At page 309 of the report, it has been held as under:-- "Postulating that the trial of offences under section 8 of the North--West Frontier Province Corps Law, 1941, could only be competently held before a Court of Session, and - the Court of Session for the Khyber Agency is the Court of the Political Agent, it must follow that the trial of the present appellant was conducted before Mr. Faridullah Shah in his capacity as a Court of Session under the Criminal Procedure Code, 1898, as applied to the Khyber Agency. There was no commitment. The trial was conducted by the warrant procedure. In that view of the matter, the solitary misdescription in the charge, i.e., where the Court described himself as District Magistrate would be without 'effect upon the legality of the trial. It would be a misdescription which was demonstrably incorrect, falling within the maxim falsa demonstratio non nocat. It would therefore be without effect upon the validity of the proceedings provided that the person conducting those proceedings possessed in himself the capacity to do so. Mr. Faridullah Shah as Political Agent possessed the capacity of a Court of Session to try the charges against Piao GUI, and to impose a sentence of 14 years' imprisonment."
In case of "Muhammad Ramzan" (supra), it has been held that misdescription of a designation by the Court does not affect the legality of the order if the Court has otherwise jurisdiction to pass an order. At page 824 of the report, it has been held as under:-- "This argument has no force whatsoever. The validity of a judgment or an order, in fact,. turns upon the question whether the Court passing it had jurisdiction to pass it and not on the fact that the Court in question described itself wrongly or put an innocent designation under its orders. If the Court passing an order has, in fact, the jurisdiction to pass the same, it would not become invalid merely because the Court gave an incorrect designation under it."
Reliance of this case has been placed on the case of "Piao Gul", referred to above. In case of "Aqeeluddin and 5 others", it has been held that if a Judge exercises his powers both as Civil Judge and a Family Court, it is not necessary to reject a plaint if the suit is entertainable by a Family Court inasmuch as a Court can proceed under that jurisdiction whereunder the proceedings are entertainable. At page 2609 of the report, it has been held as under:-- "The judgment of the learned District Judge; is therefore, partly liable to be set aside. II R.A. There is yet another aspect which must be mentioned. The learned Civil Judge, had rejected the plaint though he should have returned the same for presentation to the Family Court. I am informed that the same Judge was exercising the powers of both the Civil Court and the Family Court. In such circumstances the plaint should have been treated as one filed in the Family Court and he should have proceeded with the suit accordingly. I, therefore, while maintaining the order of remand, set aside the order remanding the case to Civil Court, and remand it to the Family Court trial according to law."
In view of the fact that the learned Judge Family Court also enjoys the powers of learned Civil Judge First Class and, therefore, even if the suit is held to be triable by the Civil Court, it cannot be said that the judgment and decree rendered in the suit is without jurisdiction.
Furthermore, argument regarding lack of jurisdiction of the trial Court, having not been specifically raised and pressed before the learned trial Court and the respondent having participated in the proceedings and invoked the appellate jurisdiction under the Family Courts Act, 1964, is not available to the respondent who is also a petitioner before this Court on the principles of estoppel and acquiescence as well, as held in the following cases:
(1) Faqir Muhammad v. Fazal Rahman and 13 others (1970 SCMR 662).
(2) M/s. Qamaruddin Ahmad & Co. v. Haji Din Muhammad and another (1970 SCMR 402)
(3) Mst. Shamim Akhtar v. Najma Baqai and 3 others (PLD 1977 SC 644).
(4) Haji Muhammad Asghar v. Malik Shah Muhammad Awan and another (PLD 1986 SC 542).
(5) Mian Bashir Haider v. Mrs. Nur Jehan Kirmani (1984 SCMR 73) and
(6) Civil Revision No. 690 of 1991 titled Ch. Haq Nawaz Chohan v. Ch. Tariq Azam etc., decided by me on 19-2-1994.
10. Substantial justice having-been done in the case by the learned trial Court and the judgment and decree rendered by the lower appellate Court being illegal and without a lawful authority it will be an exercise in futility to set aside the impugned decree rendered by the learned trial Court and result the suit to be retried by the learned trial Court as a Civil Judge particularly when the trial already held is almost identical to the one which shall be held by the learned trial Court as a Civil Judge. It is an established legal principle that proper place of procedure in any system of administration of justice would be to help and not to thwart the grant to the people of their rights.
All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. Any system which by giving effect to the form and notthe substance has the tendency to defeat substantive rights and to that extent would be defective. Ideal must always be a system that would give to every person what is his. Procedural laws are meant for advancing the cause of justice and cannot be made a vehicle of oppression to suppress the remedies Legal formalities and technicalities unless offering insurmountable hurdles could not be allowed to defeat the ends of justice. Logic of words is to yield the logic of realities.
Refer the following cases:
(1) Ahmad Latif Oureshi v. Controller of Examination Board of Intermediate and Secretary Education, Lahore and another (PLD 1994 Lah.3).
(2) Dr. Zia Suleman Farooqi v. Punjab Public Service Commission and others (PLD 1994 Lah. 55)
(3) Noorulamin and another v. Muhammad Hashmi and 27 others (1992 SCMR 1744) and
(4) Allah Ditta v. Barkat Ali and 3 others (1992 SCMR-1974). .
Therefore, proper and just trial of issues involved in the case having taken place without objection to the competency of the trial Court to hold the trial and facts being at least at this stage of litigation almost admitted and at any rate proved beyond doubt no interference is called for with the judgment rendered by the learned trial Court in exercise of discretionary jurisdiction of this Court. In view of the above, I hold that the judgment and decree rendered by the learned First Appellate Court is illegal and is without lawful authority end the judgment and decree rendered by the learned trial Court is lawful, just and hence unexceptionable.
11. Resultantly, Writ Petition No. 795 of 1992 is accepted. The judgment and decree rendered by the learned lower Appellate Court dated 4-10-1992 is declared to be illegal and without a lawful authority and is set aside and the judgment and decree rendered by the learned trial Court is restored. Writ Petition No. 1181/93 is dismissed. The parties are left 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.