' The petitioner was married to respondent No,3 on 15-1-1993. It appears that the marriage proved to be a failure. On 23-2-1993, respondent No,3, filed a suit for recovery of an amount of Rs, 50,000 alleged to be her dower against the petitioner. This suit was contested by the petitioner. A copy of the written statement is not on the file but a perusal of judgment; dated 22-3-1994 shows that the plea taken by the petitioner was that the said amount was not fixed as dower. Issues were framed.
Some evidence was produced by respondent No,3 when she made a statement in the Court that her suit be dismissed as withdrawn. The learned Senior Civil Judge, Pakpattan (it is not so mentioned in the judgment but the decree following the judgment described the Presiding Officer as Judge, Family Court) proceeded to record a judgment on merits and to hold that a sum of Rs, 50,000 was fixed as prompt dower but the same was paid in the form of 20 tolls golden ornaments.
The suit was accordingly dismissed on 22-3-1994.
2. On 29-6-1994 respondent No,3 filed another suit in the Court of a learned Civil Judge at Arifwala for the recovery of the said amount of dower. The petitioner did not file a written statement but instead filed an application under section 11, C.P.C. In the said application it was alleged that a similar suit was filed by respondent No,3 Wherein issues were framed and the suit was dismissed on merits. With these averments it was paid that the said second suit be dismissed. In her written reply respondent No,3 took up the plea that section 11, C.P.C. Is not applicable as the said suit was not finally decided on merits. The learned Judge, Family Court dismissed the application on 8-1- 1995. An appeal filed by the petitioner was heard by a learned Additional District Judge, Arifwala who dismissed the same on 24-9-1995.
3. Syed Muhammad Ali Gillani, learned counsel for the petitioner contends that section 11, C.P.C.
Was squarely applicable. Further argues that even if the judgment, dated 22-3-1994 passed in the earlier suit is assumed to be void then since the same was not challenged in the manner prescribed by law, it was binding the parties and as such the present suit could not have proceeded. Learned counsel for the respondent No,3 on the other hand, supports the impugned orders.
4. I have gone through whatever copies of record are appended with this writ petition. Bare reading of the judgment, dated 22-3-1994 would show that the respondent lady had made a statement seeking permission to withdraw her suit. The learned Judge, Family Court apparently did not permit her to do and proceeded to decide the case on merits. There is nothing in the impugned judgment as to whether the respondent lady had voluntarily closed her evidence or that her evidence was closed by invoking the provisions of Order XVII, Rule 3, C.P.C. Similarly, there is nothing in the said judgment to show as to whether the petitioner (defendant in the suit) had so voluntarily closed his evidence or that the evidence was closed by invoking the said provisions of law. To my mind for all purposes the said judgment is not a judgment finally deciding a lis between the parties by an adjudication within the meaning of section 11, C.P.C. At the most it was a dismissal by withdrawal of the suit. Now the rigors of C.P.C. And the Qanun-e-Shahadat Order are not applicable to the proceedings under the Family Courts Act except to the extent provided in section 17 thereof. The withdrawal of suit would not, therefore, constitute any bar to the filing of a fresh suit.
5. So far as the second argument of learned counsel is concerned, the same also has no force. The judgment, dated 22-3-1994 was set up as defence to the suit and the respondent lady has every right to attack the same in the present proceedings on all grounds that are available. I have already stated above that the learned Judge, Family Court has committed an error of jurisdiction while proceedings to decide the suit on its merits when respondent No,3 had made a prayer for withdrawal of the same. He did not let her to enter the witness-box and also did not provide any opportunity to the petitioner to lead evidence in rebuttal. Besides adjudication means an adjudication on the respective pleas of the parties. It was not the case of the petitioner, at least as is apparent from the said judgment that the dower had been paid. On the other hand his case was that the said amount was not fixed as dower at all and that is why the Judge. Family Court had framed issue No,1 in the said suit.
6. This is a Constitutional petition and I am not at all inclined to stifle the suit filed by the respondent lady. On the basis of the said judgment, dated 22-3-1993 which in any event is wholly unjust. This writ petition is accordingly dismissed.