Sarfraz, respondent No.2, instituted a suit against Mst. Alif Jan, in the Court of Sub-Judge, Muzaffarabad, on September 1, 1993, for restitution of conjugal rights. It was averred that the parties were duly married on August 8, 1993, at Upper Plate, Muzaffarabad. A sum of Rs.35,000 was fixed as dower. At the .time of their `Nikah', it was agreed that `Rukhsati' shall take place after 3 months.
Meanwhile, it was alleged that Rehmatullah and Habibullah, brothers of Mst. Alif Jan became selfish and were tempted for money, as such, they initiated persuasion to Mst. Alif Jan to decline her marriage with the plaintiff. They also repudiated the `Nikah' of the parties, as such the plaintiff was constrained to bring an action against the defendant. Mst. Alif Jan appeared in the Court on September 2, 1993 and admitted the claim of the plaintiff. In presence of the admission and the averments made in the plaint, the learned Sub-Judge felt satisfied to grant the consent decree on the same day.
2. The judgment and decree for restitution of conjugal rights passed in favour of Sarfraz and against Mst. Alif Jan, has been assailed in the present petition. It is claimed that Shah Zaman, petitioner instituted a suit for restitution of conjugal rights, in the Court of additional Sub-Judge, Muzaffarabad on August 21, 1993. He also applied for issuance of interim injunction against Mst. Alif Jan and others. The interim injunction was issued and Mst. Alif Jan and others were directed to appear in the Court, to defend the suit, on September 27. The interim injunction was also issued on the same day and it was served on Mst. Alif Jan, on August 21, 1993, through Muhammad Taj, Process Server. It was alleged that in view of the aforesaid position, Mst. Alif Jan, despite having knowledge of the institution of the suit by Shah Zaman, collaborated with Sarfraz and admitted his suit. Thus, in view of the petitioner, the respondents secured decree from the Court of Sub--Judge, by perpetrating fraud and without jurisdiction.
3. The petition was moved on September 27. The learned counsel for the petitioner contended that the impugned decree was patently fraudulent and illegal as it was issued on account of wrong facts and misdirection to the Court. The Court was not vested with territorial jurisdiction, as such, the decree was invalid Reference was made to PLD 1986 Azad J & K 228, PLD 1972 Azad J&K 90 and AIR 1920 Patna 568. Mr. Maqbool War, the learned counsel for the respondents controverted the aforesaid points. It was argued that Sarfraz and Mst. Alif Jan were legally-wedded. Their `Nikah' was registered. Shah Zaman endeavoured to blackmail Mst. Alif Jan who was orphan and thereby brought a fictitious and fraudulent suit for restitution of conjugal rights. It was contended that there was no, prima facie, evidence in support of alleged `Nikah' of Shah Zaman with Mst. Alif Jan. The learned counsel also referred to an F.I.R. made 'my Shah Zaman against Mohibullah and others, under sections 10, 16, 19, Offence of Zina (Enforcement of Hudood) Act, section 14, Offences Against Property (Enforcement of Hudood) Act read with section 494, A.P.C. It was claimed that the local police after investigation, came, to the conclusion that the report was false. The learned counsel supported the consent decree and contended that the proper course for the petitioner to seek redress was to bring the suit for cancellation of decree on the ground of alleged fraud. Reference was made to an unreported case decided by this Court, on February 4, 1992, titled 'Mst. Naheed Akhtar v. Zahid Hussain and others'.
4. It is accepted by the learned counsel for the petitioner that the decree for conjugal rights was ordinarily appealable. However, an exception is pleaded in the present case as the petitioner was neither a party to the proceedings before the lower Court nor he had knowledge of the decree. He also pleaded fraud and illegality for want of territorial jurisdiction. The revisional jurisdiction may be invoked in a case where no appeal lies thereto. The jurisdiction cannot be extended to cases which are appealable under the Code of Civil Procedure.
5. The powers of High Court under section 115, C.P.C. are invokable in the matters of superintendence and control over the actions and omissions ofthe subordinate Courts (i) in cases where the subordinate Court exercised its jurisdiction not vested in it by law; or (ii) failed to. exercise jurisdiction so, vested; or (iii) to have acted illegally or with material irregularity; and (iv) in an appropriate case, to meet the ends of justice. This view was expounded by this Court in Azad Kashmir Logging and Saw Mills Corporation's case, as relied by the learned counsel for the petitioner.
6. In the present case, the proposition as suggested by the learned counsel for the petitioner, is that the respondents committed fraud by securing consent decree from the subordinate Court, by mentioning wrong particulars of their place of residence and misstatement of their alleged marriage. The points listed. in the petitioner to constitute the alleged fraud and illegality, primarily, are the questions of facts. These questions of facts cannot be ascertained without adverting to adequate evidence of the parties. At this stage, this Court is not in a position to accept either of the contentions emphasised by the learned counsel for the parties.
7. Under Order 12, Rule 6, C.P.C., it was enjoined upon the Court that when a party, at any stage of a suit, made admission of facts, on the pleadings or otherwise, to give such judgment as the Court may think just. The rule enabled the Court., either on the application of either of the parties or on recording the admission in matters in dispute, to announce the judgment. The Court, of course, was not under obligation to announce the judgment immediately on account of admission by a party unless it was satisfied that the admission was a conclusive proof of the matter in controversy. In a case where the Court came to the conclusion that the admission was not sufficient as a conclusive proof of the dispute or it was not safe to pass the judgment on the admission, the Court was empowered to require proof of the facts and may refuse the judgment despite the admission.
There was no absolute rule in such cases as the exercise of discretion to announce the judgment primarily rested with the Court. Thus, suitable action could be taken in the case in the light of its own peculiar facts.
8. In the present case, Sarfraz instituted a suit for restitution of conjugal rights and asked for decree in his favour and against Mst. Alif Jan. In support of his pleadings, he appended a copy of `Nikahnama', copy of deed of dowry and copy of agreement executed by Sarfraz in favour of Mst.
Alif Jan. These documents were appended with the pleadings of the plaintiff. Mst. Ali Jan admitted the claim of the plaintiff: The learned Additional Sub-Judge, as a safeguard, recorded the statement of Mst. Alif Jan and Rehmatullah, her brother-in-law who identified her in the Court.
Ordinarily, the trial Court is not found to have committed an error in passing the consent decree.
9. The petitioner has challenged the propriety of the impugned decree on the ground of alleged fraud and incorrect particulars of the residence of the parties, to confer territorial jurisdiction of the Courts. As mentioned earlier, these propositions rest on the questions of facts. Therefore, unless sufficient evidence was available on record, the propositions could not be settled in exercise of revisional jurisdiction. The authorities sited by the learned counsel for the petitioner do not help his case. in Azad Kashmir Logging and Saw Mills Corporation's case (PLD 1986 Azad J&K 228), the ex parte decree was set aside as, in view of the Court, the judgment and decree was not passed in . compliance with the provisions of the Order 20, Rule 4 (2), C.P.C.. Moreover, the particulars relating to assessm ent of compensation, arrears and the amount spent on construction of road etc. in that case, as claimed by the plaintiff, were not ascertained by the Court. It was also observed that the evidence on record was not appreciated even in mechanical fashion. Therefore, decree being patently illegal was reversed in exercise of powers under section 115, C.P.C. read with section 39 of the Courts and Laws Code. In PLD 1972 Azad 1&K 90, in Muhammad Yusuf s case, decree was set aside for want of jurisdiction. In that case, there was sufficient material consisting of past litigation and orders of the Court in respect of the property in dispute. Therefore, it was held that the subordinate Court having no jurisdiction in the matter, was wrong to grant ex parte decree. An identical view was held in AIR 1920 Patna 568, in Brindaban's case. In that case, ex parte decfee was partly modified in presence of evidence on record. The present case is quite distinct from the aforesaid cases, as such the principle of law laid down in the aforesaid cases, is not applicable to the present case. The learned counsel for the respondents relied on Naheed Akhtar's case. In that case, an appeal was preferred against the judgment and decree of the learned District Judge, Muzaffarabad. In that case, initially, Naheed Akhtar filed a suit for payment of Rs.70,000, the value of ornaments and dowry, against Zahid Hussain and Mistry Ghulam Sarwar. Her husband pleaded compromise between the parties and alleged that in presence of the settlement of dispute, the suit was not maintainable. Naheed admitted the claim of her husband and stated further that she did not want to continue her suit. Her statement was recorded and the proceedings were postponed Meenwhile, Naheed Akhtar moved the second application that she was subjected t o fraud as the agreement made between the parties at the time of settlement of dispute, was not acted upon.
The learned Sub-Judge dismissedthe suit as well as the application. Both the matters were brought before this Court in appeal. It was observed that the allegation of fraud allegedly practiced on the appellant was liable to be challenged in an independent suit and not in the form of application.
Thus, the appeal was dismissed on that score.
10. In the present case, undoubtedly, the claim of the petitioner, primarily rested on deception and misrepresentation. These controversies can only be settled through a suit and not in the shape of present revision petition. The petition, therefore, merits no consideration. It is dismissed. No order as to costs.