HUSSAIN ADIL KHATRI, J.- The petitioner has assailed the judgment and decree dated 28.2.1993 passed by the 8th Civil and Family Judge, Karachi East in Family Suit No. 260 of 1990 whereby the Family Court Judge held that the petitioner was entitled to dissolution of marriage by way of Khula on return of seven tolas of gold received by her as dower, but dismissed the suit as the learned Judge found that he had no territorial jurisdiction in the matter.
2. The petitioner, as stated above, filed a suit in District East Karachi. In the plaint, she had shown herself to be resident of Future Colony in a house located behind Ali Muhammad Hotel, Landhi No. 22, Karachi. The learned Family Court Judge, however, held that the petitioner was residing at Keamari.
3. In the above context, it may be pointed out that in the plaint the petitioner has described her address of Landhi, as stated hereinabove. In para 15 of the plaint, she further stated that she was residing within the area of Police Station Landhi within the jurisdiction of the Court, Respondent No. 1 in his written statement in the suit, raised preliminary objection that the plaint was not maintainable under the law for want of jurisdiction. However para 15 of the plaint was denied for want of knowledge, instead of specifically denying the averment to the effect that the petitioner was residing within the area of Police Station Landhi, Karachi East.
4. The learned counsel for the petitioner has vehemently contended that there is no evidence on record to show that the petitioner did not ordinarily reside within the territorial jurisdiction of Police Station Landhi at the time of institution of the suit. The petitioner in her evidence disclosed her residence to be at Keamari. In evidence she had deposed that defendant lodged the report against her and her brother. She was arrested and was sent to Darul Aman under the orders of the S.D.M. When she was released from Darul Aman, she shifted to the house of her nephew at Landhi.
She further deposed that when she had filed the suit, she sued to reside at Landhi. She further deposed that apprehending danger to her life at the hands of respondent No. 1, she shifted from Landhi to Keamari. In cross-examination, the only suggestion put in this respect to the petitioner, which she denid, was that she never lived in Landhi. Respondent No. 1 in his deposition stated, "we did not reside at Landhi. The plaintiff is residing at Keamari". He did not rebut the fact that at the time of institution of the suit, the petitioner resided at Landhi.
5. Respondent No. 1 examined Nauroz Khan, the brother of the petitioner. He in his evidence, deposed, "at present Mst. Taj Bibi is residing at the house of Ghafoor Khan. They did not reside at Landhi presently". The above evidence was recorded on 23.5.1992. The said witness on the one hand did not rebut the fact that the petitioner was residing at Landhi at the time of institution of the suit and on the contrary his deposition tends to show that she used to reside at Landhi but at the time of evidence was being recorded. She was not residing at Landhi. It is also not disputed that at the time she was being cross- examined on 2nd March 1992, she was residing at Keamari. The relevant fact is whether she was residing at Landhi or had ordinary residence there at the time she had instituted the suit. No evidence was led by respondent No. 1 with regard to the ordinary residence of the petitioner at Landhi, in rebuttal of the evidence of the petitioner.
6. It may be pointed put that the only evidence that had impressed the learned Family Court Judge was the deposition of respondent No. 1 to the effect that he and the petitioner did not reside at Landhi. Presumably the learned Judge had given importance to the above evidence in view of Clause (a) of Rule 6 of the W.P. Family Courts Rules, 1965, which provides that the Court shall have the jurisdiction to try a suit, will be that within the local limits of which the cause of action wholly or in part has arisen or where the parties reside or last resided together. However the Proviso to the said Rule reads as under:- "Provided that in suits for dissolution of marriage or dower, the Court within the local limits of which the wife ordinarily resides, shall also have jurisdiction."
7. As already noted above, respondent No.. 1 had failed to produce evidence in rebuttal of the petitioner's evidence with regard to her ordinary residence within the territorial limits of Police Station Landhi. The finding of the learned Trial Court Judge with regard to jurisdiction is based on no evidence.
8. It was contended by the learned counsel for the petitioner that dismissal of the suit on the finding of territorial jurisdiction is without any lawful authority. If the learned Judge had no such jurisdiction, he Ought to have returned the plaint for presentation thereof before the proper Court.
The submission is not without force. If the Court had no territorial jurisdiction, the only legal order that could have been passed was for return of the plaint for presentation before the Court of competent jurisdiction and not of dismissal of the suit.
9. Another aspect of this case which needs to be pointed out is that the litigation between the petitioner and the respondent No. 1 had started after about 27 years of the marriage. It is admitted that after respondent No. 1 had married to petitioner, he had entered into two other marriages also.
There is no child from the wedlock between petitioner and the respondent No. 1. It is the case of the petitioner that the respondent No. 1 used to pick up quarrel and beat her mercilessly as she was not in a position to bear the child. The learned Judge had considered the above fact and for very good reasons allowed her Khula on return of seven tolas of gold which she had received at the time of marriage.
10. The finding that the Court had no territorial jurisdiction is based on no evidence. Even otherwise it is not the case of respondent No. 1 that the institution of the suit in a wrong Court suffered from mala fide or any prejudice was caused to him. The dismissal of the suit after recording the finding that the Court had no jurisdiction, was itself without jurisdiction. The Trial Court had found the petitioner entitled to grant of Khula. Under the above circumstances, the equitable jurisdiction can be exercised to foster justice. The finding of the Trial Court that it had no territorial jurisdiction and the order of dismissal of the suit for such reason, are hereby reversed and the petition is disposed of accordingly with no order as to cost.