' CH. MUSTHTAQ AHMAD KHAN, J.---Mst. Zainab Bashir who is the respondent No,2 in this appeal was married to the appellant on 1-5-1992. As per entry in column No,18 of the Nikahnama, the right of divorce (Talaq-iTafwiz) has been conferred upon her at the time of marriage. Thereafter, the spouses lived together as husband and wife, for a period of about two years, whereafter she left the house of her husband, the appellant, due to their development of differences between them on 9-3-1994. She served a notice of Talaq dated 28-3-1994, in exercise of her right of Talaq-i-Tafwiz under sections 7 and 8 of the Muslim Family Laws Ordinance, 1961 stating therein that she had pronounced divorce as she cannot live with the appellant as his wife. In reply to the notice, plea taken by the appellant is that the right of divorce has never been delegated to the respondent, therefore, she should come and live with him as his wife. Objections were also sent by him to the Chairman, Arbitration and Reconciliation Council, Lahore Cantonment Board, Ward No,7, Lahore Cantt. Stating therein that the Chairman has no lawful authority to issue a certificate and further that clause 18 of the Nikahnama had been forged by the wife. However, he nominated his representative to constitute an Arbitration Council.
2. During the pendency of aforementioned proceedings, the appellant filed a suit for restitution of conjugal rights on 31-5-1994, which is presently pending in the Court of learned Judge Family Court, Lahore. Plea taken in the restitution suit is that Talaq proceedings pending before the Chairman are not lawful. The respondent has also filed a suit against the appellant for recovery of dower amount of Rs,50,000 which is pending adjudication before the learned Judge Family Court, Lahore. Another suit for jactitation of marriage filed by the appellant after termination of proceedings before the Chairman is also stated to be pending before the lower Court.
3. The Chairman of the Local Council held proceedings under the provisions of Muslim Family Laws Ordinance, 1961 and constituted an Arbitration Council consisting of himself and M/s. Abdur Rehman and Mazhar Bokhari, the nominated representatives of the parties. The Arbitration Council made efforts for reconciliation but did not succeed. After expiry of ninety days w,e,f, the date of service of notice of Talaq, vide order dated 2-7-1994, it has been held that as the Arbitration Council has not been able to get the matter reconciliated, Talaq becomes effective as per provisions of section 7 of the Family Laws Ordinance w,e,f, 2-7-1994. This order was challenged by the appellant in Writ Petition No,8810/94, which has been dismissed by a learned Single Judge of this Court vide order dated 29-1-1995. This order has been challenged in this ICA.
4. Mr. A.K. Dogar, Advocate, learned counsel for the appellant contended that case of the appellant being that he had never delegated the right of divorce to respondent No,2, there was no question of her possession of right of Talaq-i-Tafwiz, hence, notice of Talaq issued by her being without a lawful authority, no further proceedings could have been held thereupon under the provisions of the Ordinance; that appellant is Shia by faith, hence, even if it is assumed without conceding that right of Talaq was delegated to the respondent No,2, Talaq having not been pronounced in accord with Shia law, the whole proceedings before the Chairman, Arbitration Council arbitration proceedings being corum non judice, were liable to be declared as illegal and without lawful authority by the learned Single Judge of this Court; that the right to pronounce the divorce vests in the appellant, the respondent No,2 had to act as an agent of the appellant, who had revoked/withdrawn the said notice in his reply to the notice issued by the Chairman and also by filing of suit for restitution of conjugal rights, hence, further proceedings could not be held by the Chairman of the Local Council; that the Chairman, Arbitration Council had no lawful authority to pass an order to the effect that Talaq has become effective and that the learned Single Judge has decided the controversial/complicated questions of fact and law without recording of evidence although the scope in this petition was limited to the decision of the question as to whether the proceedings of Talaq as decided by the Arbitration Council with or without lawful authority and in this manner the real controversy in question has not been comprehended by the learned Single Judge, and as such litigation pending before the Court of competent jurisdiction is going to be prejudiced due to certain observations made/findings rendered by the learned Single Judge. In support of his contentions besides making a reference to paragraphs Nos. 30 and 32 of Mullah's Mohemmadan Law, section 182 of the Contract Act, learned counsel has placed reliance on the law declared in the following cases:--
(1) Syed Ali Nawaz Gardezi. v. Lt.-Col. Muhammad Yousaf (PLD 1963 SC 51).
(2) Dr. Razia v. Mushir Ahmed Pesh Imam (1988 CLC 467).
(3) Ahmed Nadeem v. Chairman, Arbitration Council (1991 MLD 1198).
(4) Mst. Fahmida Babi v. Mukhtar Ahmed (PLD 1972 Lahore 694), and
(5) Mst. Zakia Farooq v. Chairman Union Council (1991 CLC 1720).
5. We have considered the arguments addressed by the learned counsel for the appellant and have also perused the record. It is not necessary to give a detailed resume of cases cited at the Bar as suffice it to say that there is no cavil with the legal propositions laid down therein, which are to the effect that the Arbitration Council while dealing with the notice of Talaq issued under the provisions of sections 7 and 8 of the Family Laws Ordinance, 1961, is not competent to determine the controversial questions of fact and law relatable to the genuineness/legality, etc. Of the notice of Talaq as jurisdiction of the said Councils limited to making of efforts of reconciliation and that the Chairman has not to pass a final/binding order regarding effectiveness or otherwise of Talaq. Even if Talaq have become effective as a result of expiry of a notice issued under sections 7 and 8 of the Muslim Laws Ordinance, 1961 as per provisions of the said Ordinance, the issue of its effectiveness can still be gone into by the Family Court which is the Court of exclusive jurisdiction to decide the such like questions. A perusal of the order passed by the Chairman, Arbitration Council clearly shows that a validly constituted Arbitration Council has not at all determined I he question of validity of notice of Talaq as well as, other complicated, factual and legal questions which have been raised before us and which were raised before the learned Single Judge. These questions were not pressed before the Arbitration Council by the appellant or his representatives. The contents of the Order clearly show that the Arbitration Council made an effort of reconciliation and failed. Last portion of the order is statement of the correct legal position that in case a notice of Talaq is served A upon the Chairman, Arbitration Council, and is not withdrawn expressly or impliedly within a period of 90 days w,e,f, service of notice, Talaq shall automatically become effective, even if Chairman, Arbitration Council would not have written in the order the consequence being provided in the law itself, A result would have been the same. Therefore, we are of the view that the respondent No,1 has not exceeded in their authority/jurisdiction while dealing with the notice of Talaq served upon the Chairman by the respondent No,2. The Arbitration Council has rather acted in consonance with the law declared in the judgments relied upon by the learned counsel for the appellant.
6. As regards the criticism about the judgment rendered by the learned Single Judge of this Court, we are of the view the same is also misconceived and uncalled for. The subject-matter before learned Single Judge was the order passed/proceedings taken by the Arbitration Council and the arguments addressed by the learned counsel for the appellant as well as the findings rendered in the writ petition shall have to be read with reference to and for the purpose of resolution of controversy which was the subject-matter of the writ petition i,e, order/proceedings held by the Arbitration Council under sections 7 and 8 of the Muslim Family Laws Ordinance, therefore, any observation made and finding rendered by the learned Single Judge shall have to be read for the purpose of taking a decision as to whether the order passed/proceedings taken by the Arbitration Council are lawful or not which order/proceedings in our view as well cannot be said to be in any manner illegal and without lawful authority. Therefore, impugned observation/findings regarding the complicated questions of facts and law which can only be resolved after recording of evidence by a Court of competent jurisdiction which in this case would be the Family Courts, cannot be stuck down as being illegal or uncalled for as the appellant himself had asked for it as such the appellant has neither any cause of grievance nor a locus standi to challenge the said observations/findings which have been recorded for a limited purpose of taking a decision as to whether the proceedings held before the Arbitration Council were lawful or not, therefore, we do not find any fault with the judgment of learned Single Judge merely on the ground that findings have been rendered which had to be gone into before lower Court before whom other litigation between the parties is pending as the said litigation is to be decided on its own merits.
7. As regards the argument of the learned counsel for the appellant that the right of divorce was never delegated; that there were forgery in the Nikahnama; that the Talaq had to be given as per Shia Fiqah and having not been pronounced in accord with the mode and method as provided under the Shia Law, is not valid in law and that the position of the respondent No,2 shall be that of an agent of the appellant. We are not rendering any decision on these questions simply for the reasons that the appeal can be disposed of on the basis of the decision of the aforementioned two issues which have been determined in the earlier part of this order and, hence, any decision on the above questions by us will be beyond the gravamen of the controversy before this Court and may also prejudice/adversely effect the other pleadings, proceedings before a Court of competent jurisdiction legality or otherwise whereof, is not before us.
7. Resultantly, we see no force in this I.C.A., hence, the same is dismissed in limine.