Mst. Farah Khan, the petitioner was married with respondent No,1, presently a citizen of United States of America, on the 10th May, 1985, at Lahore in accordance with the provisions of the Muslim Family Laws Ordinance, 1961. A son was born out of this wedlock in Pakistan in 1986 wherafter the petitioner joined her husband in U.S.A. and stayed with him till 1989, during which period a daughter was born out of their wedlock. On her return to Pakistan, she lived tor quite sometimes with her in- laws whereafter she joined her parents at Faisalabad.
2. It is said that during petitioner's stay with respondent No,1 in U.S.A., 'relations between the parties became strained. In the meanwhile, Tahir Hameed Khan, respondent No,1, applied for divorce under the United States Domestic Relations Law. Consequently, by order of the Supreme Court of the State of New York dissolution of marriage between the parties was recorded on 29-1-1991. Later, on receipt of a communication, the Court re-opened the proceedings and vacated the divorce decree. Respondent No,1, thereupon, by a notice to the concerned Chairman, Union Council, dated 1-2-1991, divorced the petitioner. In pursuance thereof, an Arbitration Council was constituted.
During the proceedings of the Arbitration Council, the articles of dowry, including jewellery, were received back by the petitioner's father who represented her before the Council. Hence, by its order dated 27-8-1991, the Arbitration Council endorsed that the divorce pronounced by respondent No,1 had become effective. The petitioner has now by this Constitutional petition assailed the said order of the Arbitration Council, Ward No,2, Jhang Bazar, Faisalabad, dated the 27th August, 1991, pronouncing effectiveness of Talaq given by respondent No,1 claiming the same to be illegal as he, being a citizen of U.S.A., could not invoke the provisions of the Muslim Family Laws Ordinance, 1961.
3. Respondent No,1 has vehemently opposed the petition on the ground that despite his acquisition of citizenship of the United States, he could divorce the petitioner under the Sharia.
4. I have heard the parties at length. Ms. Hina Jillani, Advocate, the learned counsel for the petitioner has mainly relied upon the findings of this Court in Mst. Saima Rashid v. Emran Riaz Imani (1993 CLC 1331). In that case both the husband and wife were citizens of the United States and on the objection of the wife, the learned Single Judge held the proceedings before the ,Chairman Arbitration Council to be without lawful authority and of no legal effect. In this connection, the learned Counsel referring to the provisions of the Citizenship Act, 1951, rightly pointed out that a citizen of United States cannot have dual nationality i,e,, of United States as well as of Pakistan, as the laws of the former country do not allow holding of more than one nationality. She also relied upon Maqsood Ahmad Malik v. Mst. Fouzia Farhana Quddus and other (1991 SCM R 681). In this case, both the parties were originally Pakistani citzens. They migrated to the United States and acquired American citizenship. Later on, they got married in that country in accordance with the Muslim rites performed in the Islamic Centre, Washington by a Muslim Nikahkhawan duly appointed by the United States Government for the purpose. Consequently, the husband came to Pakistan and pronounced Talaq in accordance with the Muslim Family Laws Ordinance, 1961 and initiated proceedings thereunder for finalization of the divorce. The High Court had held that the Senior Civil Judge/Judge Family Court, Islamabad, who was seized of the matter could not exercise the jurisdiction under section 3 of the Muslim Family Laws Ordinance, 1961. The Supreme Court agreed with the findings of the High Court that the Muslim Family Laws Ordinance, 1961, will not be attracted in the said case but held that the Senior Civil Judge had the jurisdiction to decide the case in accordance with the proper law of the parties applicable to them.
5. Both these authorities, however, are distinguishable. In the instant case, originally both the petitioner and respondent No,1 were Pakistani citizens. The marriage between them was held in Pakistan in accordance with the provisions of the Muslim Family Laws Ordinance, 1961, and after three years of the marriage only the respondent No,1 had acquired the citizenship of United States.
Subsection (2) of section 1 of the Muslim Family Laws Ordinance, 1961 provides that the said Ordinance "extends to the whole of Pakistan and applies to all Muslim citizens of Pakistan whereever they may be". By virtue of the provisions of section 13(2) of the General Clauses Act, 1897, whereunder the words in a statute in the singular shall include plural and vice versa, the expression "citizens" shall include one citizen. Meaning thereby that where even one of the party is a Muslim citizen of Pakistan, the provisions of the Ordinance would also be attracted. This provision does not envisage that the Ordinance will apply only if both the parties, more particularly the husband, are Muslim citizens of Pakistan. On the other hand, following the aforesaid principle provisions of the Muslim Family Laws Ordinance 1961, could be invoked where even one of the party to the marriage is a Muslim citizen of Pakistan.
6. Further, in the instant case, admittedly both the parties had joined the proceedings before the Arbitration Council without any objection to the jurisdiction. During the said proceedings, articles of dowry, including, jewellery were returned by respondent No,1 to the representative of the petitioner.
The learned counsel representing respondent No,1 has in this connection rightly relied upon Hafeez-ud-Din v. Mian Khadim Hussain and another PLD 1965 (W.P.) Lahore 439 wherein a Division Bench had held as under:-- "A party litigating must act consistently. It is a wholesome doctrine of law that a party cannot be allowed to play fast and loose; blow hot and cold and approbate and reprobate, to the detriment of his opponent. Where a person knowingly and wilfully invites the Court to adopt a procedure, he cannot be permitted to turn round and blame the court for the very same procedure which he himself invited the Court to follow. When the conduct of the applicant has been such as to disentitle him to the assistance of the Court, no writ can be issued at his instance even though the impugned order may, in fact, be found to have been passed by the authority concerned without any jurisdiction."
Similar view was taken in Ghulam Mohayyudin v. Chief Settlement Commissioner (PLD 1964 SC 829) as reproduced below:-- "The principle upon which the writ is refused in such cases is not that jurisdiction has been conferred on the Tribunal concerned by waiver and acquiescence but that even though the impugned order is without jurisdiction the person seeking to have it quashed, should not be granted that discretionary relief as he had stood by and allowed the Tribunal to usurp a jurisdiction which did not possess knowing that the Tribunal concerned was committing such an illegality in consequence of something done by the person himself." agreement dated 1-6-1976. He paid three instalments in advance and also gave money towards fixed deposit and obtained receipts from the landlady. On 10-9-1978 the applicant left for Peshawar where his father had died but when he came back on 5-12-1978 he found that his locks were broken and the house was unalwfully occupied by the respondents Nos.1 and 2. The goods lying in the house were also misappropriated by them. He was not allowed to enter the house in dispute.
3. The applicant thereafter wanted to lodge F.I.R. with Nazimabad police station but the S.H.O. refused to register the same and it was only after representation to the Home Department, Government of Sindh that his F.I.R. dated 15-12-1978 was registered and respondents Nos.1 and 2 were also challaned. The respondents, thereafter, filed Suit No,437 of 1979 (new No,438 of 1988) on 30-1-1979 for recovery of possession of the disputed property. Subsequently, in the year 1981 he filed another Suit No,1920 of 1981 (New No,2385 of 1985) for recovery of mesne profit and damages. Both these suits were amalgamated and common issues were framed on 19-3-1991.
4. From the pleadings of the parties it appears that the disputed property had been the center of serious dispute amongst the persons claiming its ownership. The house in dispute belonged to Shafi Muhammad and after his death it devolved upon his wife namely Mst. Kubra Bibi who was his sole surviving heir. She sold a portion of this house and gifted the remaining, which is subject- matter of the instant proceedings, while Mst. Qaiser Jehan let out the same to the applicant.
5. The respondent No,2 on the other hand claims that Muhammad Shafi was his uncle and he adopted him as his son. According to him, Mst. Kubra, who was a very old, ill and Pardahnashin lady, was fraudulently made to execute the gift in favour of Mst. Qaiser Jehan Begum.
6. The learned Senior Civil Judge framed as many as 11 issues out of which the one relevant for the purpose of disposal of other issues is; "Whether the plaintiff was in possession of suit house?"
7. The learned Senior Civil Judge held that the applicant was not in possession of the said property and subsequently dismissed both the suits by the impugned judgment dated 25-8-1994.
According to the trial Court, the applicant failed to appear and led his case in person and did not examine any witness of the locality and the persons examined by him were interested witnesses.
Furthermore, the landlady was not examined in Court and as observed by the learned Judge the applicant did not produce any documentary evidence to establish his tenancy. It was, therefore, held that the applicant failed to discharge his burden to prove that the disputed property was in his possession.
8. I have heard the learned counsel for the applicant and learned counsel for the respondents Nos.3 and 4. The later has submitted statement that they have no interest in the suit or this revision application. The respondents Nos.1 and 2 were called absent. I have also perused the record.
9. It has been contended by the learned counsel for the applicant that the findings of the subordinate Court is based on misreading of evidence and that the jurisdiction vested under section 9 of the Specific Relief Act (hereinafter referred to as the Act) has not been exercised according to law. The documents produced by the applicant were not looked into and the statement of his witnesses were not considered. It was further contended that the trial Court while coming to its conclusion was guided by extraneous consideration.
10. From the record of the case, I find that the applicant produced among others the following documents through his attorney, Zamir Ahmed Ansari.
(1)Tenancy agreement dated 1-6-1976 executed by the applicant and Mst. Qaiser Jehan Begum.
(2)Receipts showing payment of three months advance and fixed deposit.
(3)Extract from Excise and Taxation Department showing Mst. Qaiser Jehan Begum as owner and the applicant as occupant.
(4)Letter of Habib Bank sent to the applicant at his address being the disputed property.
(5)Copy of the F.I.R.
(6)F.I.R. certificate dated 6-5-1986 issued by Income Tax Department and showing residential address of the applicant at the said property.
The applicant examined the following witnesses:-- (a)Zamir Ahmed Ansari.
(b)Masood A. Abbasi.
(c)Wazir H. Rizvi.
(d)Saeedur Rehman.
11. Zamir A. Ansari is the general attorney of the applicant and also one of the witnesses to the tenancy agreement executed between the applicant and his landlady. He also produced the documents mentioned above and similarly Masood Ahmed Abbasi is the general attorney of the landlady. Mst. Qaiser Jehan Begum and he is also her husband. He admitted tenancy agreement and also the possession of the said premises by the applicant. Wazir H. Rizvi and Saeedur Rehman both of whom are independent witnesses stated that they had visited the disputed premises and met the applicant there in connection with some work which they wanted to assign to the applicant who was a petty contractor. The statements of these witnesses as well as the documents produced by Zamir Ahmed Ansari go to prove that the applicant had been in possession of the suit property. It is established legal position that in a suit for specific performance under section 9 of the Act what is relevant is his possession and not the title although contrary has been erroneously observed and concluded by the learned trial Court.
12. The provisions of law contained in section 9 of the Act has four ingredients:-- (1)persons suing must have been dispossessed; (2)such dispossession must be from immovable property; (3)dispossession should be otherwise without consent and (4)dispossession should be otherwise than in due course of law;
13. As was held by the Hon'ble Supreme Court, in Dr. Riaz v. Razi Muhammad, 1982 SCM R 741 that section 9 of the Act in no way controls the operation of section 26 of Qanoon-e-Shahadat Act and has no concern whatsoever with title, but is merely a law for restoring possession which has been disturbed otherwise than in due course of law. It may be emphasised that no question of title either of the plaintiff or of the defendant can be raised or gone into in this case. Furthermore, the possession of the applicant in respect of disputed property has been fully established by the evidence on record. I also find that the general attorneys of the applicant as well as of the land lady appeared in court and examined themselves as witnesses. Their statements would therefore be as good as the statements of the applicant and his landlady. Mere fact that the applicant did not appear in person or that the landlady did not herself attend the Court will not in any manner prejudice the case of the applicant.
14. After having found that the applicant was in possession of the suit property the next question which arises is whether he was dispossessed according to law? It is established by the material on record that the respondent Nos.1 and 2 forcibly occupied the disputed property during the absence of the applicant who has clearly made out a case for restoration of this possession. Therefore, Suit No,437 of 1979 (New No,438 of 1988) is decreed as prayed.
15. So far Suit No,2385 of 1985 (for mesne profit and damages) is concerned, it was pointed out by the learned counsel for the applicant that an appeal against the dismissal of this suit was preferred before the learned IInd Additional District Judge, Karachi Central and that appeal is still pending. Therefore, on disposal of this revision no further comment is required as the learned appellate Court is seized of the matter and would be at liberty to dispose of the same according to law.
Since the respondents Nos.1 and 2 did not come forward to contest this revision application there would be no order as to costs.