This revision petition under section 115 of Code of Civil Procedure is directed against the judgment, dated 16-3-1995 passed by Additional District Judge, Gujranwala whereby the appeal of the petitioners assailing the judgment and decree of the learned Civil Judge, dated 19-7-1993, dismissing their suit for specific performance of contract, was rejected.
2. The petitioners in their suit for specific performance of contract, filed on 29-11-1992, inter alia, averred that petitioner No. l was married to respondent No.2 on 22-5-1982. Unfortunately, no child was born out of this wedlock and as such respondent No.2 made a request to petitioner No. l for permission to contract second marriage. This permission was allegedly given by the petitioner No. l subject to the condition that respondent No. l would pay Rs.500 per mensum as maintenance and would alienate in her favour one room and one shop in House No.26/1-S-9, situated in main Bazar, Chicherwali. Respondent No.1 agreed to this condition- with the result that he executed an agreement on 31-3-1987, forming the basis of the present suit.
3. After obtaining permission to contract second marriage, respondent No.2 divorced petitioner No. l on 18-8-1992. It is in these circumstances that she was forced to file a suit for specific performance of the contract/agreement, dated 31-3-1987.
4. Suit was contested by the respondents. Number of preliminary objections were raised. As regards the execution of the agreement in question there was no specific denial and all that was averred vide paragraph 3 of the written statement was as under:--
5. Learned Civil Judge framed the following issues arising out of the pleadings of the parties:--
(1) Whether the defendants had executed an agreement dated 31-3-1987 regarding the suit property in favour of plaintiff No. l and they are bound to execute a sale-deed in favour of plaintiff No. l?
(2) Whether the plaintiffs have got no cause of action?
(3) Whether the suit is time-barred''
(4) Whether the suit has not been properly valued for purposes of court-fee and jurisdiction?
(5) Whether the plaintiffs are estopped to file this suit due to their own words and conduct?
(6) Whether the suit is based on wrong facts and the defendants are entitled to special costs under section 35-A, C.P.C.?
(7) Relief.
6. On behalf of the petitioners Abdur Rehman's appeared as P.W.1 and deposed that agreement EXh.P.I was executed between the parties and he put his thumb-impression thereon as a witness and the same also bore thumb--impression/signatures of the contesting parties. Ahmad Din petitioner No.2, appeared as P.W.2 and deposed that Mst. Manzooran was his daughter and in return of permission to contract second marriage respondent No.2 undertook to compensate her b% providing maintenance as well as the alienation of the immovable property, referred to hereinbefore, in her favour through execution of Exh.P.1. He deposed that this document was signed by respondent No. 2 and he signed it as a marginal witness. Manzooran Bibi petitioner appeared as P.W.3 and deposed about the background of the relationship between the contesting parties leading to her permission to respondent No.2 to contract second marriage and her subsequent 'divorce. She also deposed that with a view to secure permission for second marriage, respondent No.2 executed EXh.P.I i.e. Agreement in question in her favour which was signed and thumb-marked by the parties. Copy of statement of Muhammad Ishaq respondent No. l before Arbitration Council (Exh.P.2) was tendered in evidence, apart from copy of plan of disputed property as Exh.P.3.
F6llowing sentence from statement (P.2) may be reproduced:--
2. On behalf of the respondents Mehr Din appeared as D.W.1. He lent indirect support to the case of the petitioner. It may be advantageous to quote the exact words used by him in this behalf:-- He further deposed that` he had thumb-marked the agreement Exh.P. As a marginal witness.
Respondent No.1 appeared as D.W.2. He admitted the factum of execution of the agreement in question in his examination-in-chief. As regards the contents of the agreement, he tried to explain it as under:-- Significantly no such condition finds mention in the agreement.
8. On behalf of respondents, learned counsel tendered in evidence copies of statements of petitioner No.1 EXh.D.I (subject to objections as to admissibility) as well as copy of statement of Javed Iqbal, D.W.2 and copy of decision of Arbitration Council (pertaining to divorce) as Exh.D.3, copy of notice of Talaq Exhs.D.2 to D.4 and closed his evidence. . .
9. It is contended by the learned counsel for the petitioners that both the learned Courts below have fallen in error to refuse to grant the relief of decree for specific performance to the petitioner No. l despite the fact that the agreement in question between the contesting parties stood proved.
According to the learned counsel, the finding of the learned District Judge that the agreement being without consideration was to be treated to be void was clearly untenable in law. According to the learned counsel permission granted by petitioner No.1 to respondent No.2 to have second were amounted to valid consideration for the disputed agreement Exh.P.1.
10. After hearing the learned counsel for the petitioners and going through the record with her assistance, I find merit in this revision petition.
From the evidence on record it is proved that respondent No.2 executed agreement EXh.P.I in return for the permission granted by petitioner No.1 to have a second were. It is wholly wrong on the part of the learned District Judge to consider that this permission did not constitute a valid consideration for the agreement as it militated against section 27 of the Contract Act. He failed to note that a restraint is put under the law on Muslim husband to contract second marriage without seeking permission in writing from Arbitration Council. Section 6(1), Muslim Family Laws Ordinance, 1961 reads as under:-- "6. Polygamy.--- (1) No man, during the subsistence of an existing marriage, shall, except with the previous permission in writing of the Arbitration Council contract another marriage, nor shall any such marriage contracted without such permission be registered under this Ordinance."
This Ordinance has overriding effect and is to prevail, is notwithstanding any law to the contrary.
Section 3 of the Ordinance makes this position clear:-- "3.Ordinance to override other laws etc.--- (1) The provisions of this Ordinance shall have effect notwithstanding any law, customs or usage and the registration of Muslim marriage shall take place only in accordance with those provisions. "
Therefore, section 27 of Contract Act, in the circumstances of this case, would be deemed to yield to express provision of section 6 of Muslim Family Law Ordinance, 1961.
Grant of no objection by petitioner No. l to respondent No.2 to contract second marriage leading to certificate by Arbitration Council is to be treated to valid consideration for him to agree to alienate disputed portion of his house in her favour. The findings of both the learned Courts below on issue No. l are reversed.
12. As regards the merits of the case, it is clear from the resume, of the evidence of the parties, detailed above, that the petitioner No.1 had fully p succeeded in proving her entitlement to seek decree for specific performance of the agreement Eich.P.1.
13.It is readily unfortunate that respondent No.2 did not act in- a fair manner and after obtaining permission for second marriage in lieu of the consideration of alienation of rights in his property, vide agreement Exh.P.1 in favour of petitioner No. 1, he promptly proceeded to divorce her, and when she brought the suit for specific performance of the agreement, he opposed it bitterly. All the equities were also in favour of petitioner No. 1. Learned Courts below fell in error of law in non- suiting petitioner No. l on considerations which were not at all tenable in law.
For what has been stated above, this revision petition merits acceptance. Accordingly, while allowing it, the judgments and decrees of both the Courts below are set aside with costs throughout and the suit of the petitioners is decreed as prayed for.