PLJ 2009 SC 626
[Appellate Jurisdiction]
Present: Muhammad Moosa K. Leghari, Syed Zawwar Hussain
Jaffery & Sheikh Hakim Ali, JJ.
EJAZ NASEEM--Petitioner
versus
FAREEHA AHMAD and others--Respondents
C.P. No. 1490 of 2008, decided on 3.12.2008.
(On appeal from the order/judgment dated 31.10.2008
passed by Islamabad High Court, Islamabad in Writ Petition No. 2938 of 2006).
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 5--Suit for dissolution of marriage on bases of
khula--Jurisdiction--Section 5 of Family Courts Act has conferred exclusive
jurisdiction upon a Family Court to entertain, hear and adjudicate upon matters
specified in Part I of Schedule Family Court was passed of the jurisdiction by
the Family Courts Act, to adjudicate upon all those matter, pleaded as counter
claim in the written statement--Not only dissolution of marriage yet dower,
maintenance, restitution of conjugal rights, custody of children, guardianship,
jactitation of marriage, dowery, personal property and belongings of wife are
entered and included in the schedule. [P.
629] A
Estoppel--
----Consent decree on basis of compromise--When
particularly the consent decree was allowed to be passed by the petitioner
himself on the basis of compromise entered into by him, without any objection
to it--An estoppel as against the petitioner who had through his own
representation allowed the defendant to accept the compromise and had let the
compromise become a concent decree of the Court.
[P. 630] B
Consent Decree--
----Delay of 390 days--Not be condoned--Consent decree
passed against him at the stage of execution petition, and through an appeal
which was barred by inordinate delay of 390 days, which could not reasonably be
condoned on any sound reasoning. [P. 630]
C
Mr. Ibad-ur-Rehman Lodhi, ASC and Mr. Ejaz Muhammad Khan,
AOR (absent) for Petitioner.
Khawaja Muhammad Farooq, ASC for Respondent No. 1.
Nemo for Respondents Nos. 2 & 3.
Date of hearing: 3.12.2008.
Order
Sheikh Hakim Ali, J.--Dr. Ejaz Naseem, the present
petitioner of the instant civil petition had contracted marriage with Mst.
Fareeha Ahmad on 31st October 1992. From this wedlock, two daughters namely
Laiba Ejaz and Rahima Ejaz were born. According to petitioner, in the month of
May 2002, cordial and friendly relations became strained and uncongenial
atmosphere prevailed which resulted in the institution of a suit for
restitution of conjugal rights by the petitioner, against Mst. Fareeha Ahmad,
defendant/Respondent No.1. After appearing in the suit, Mst. Fareeha Ahmed,
defendant filed a written statement claiming therein dissolution of marriage on
the basis of khula, recovery of cash to the tune of Rs.2,90,000/- and personal
belongings i.e. jewelry and house hold goods, etc. as per list appended in the
form of Annexure A and payment of maintenance for herself at the rate of
Rs.20,000/- per month, while for minor daughters at the rate of Rs. 15,000/-
per month each with effect from January 2002. She also claimed Rs. 1,75,000/-
as maternity expenses for the above noted two children, and Rs.438,428/- as
educational expenses, incurred on the schooling of both these minor daughters
with effect from 2001 to 2004. Issues were framed but before the evidence could
be produced, parties entered into a compromise, which was produced by the
learned counsel for the plaintiff in the shape of an Affidavit, and was brought
on the case file as Mark "A" through the statement of the learned
counsel for the plaintiff. The compromise was accepted by the learned counsel
for the defendant, and on 7.5.2005, the learned Judge Family Court, Islamabad,
decreed the counter claim of the defendant in accordance with the affidavit
Mark "A", while the dissolution of marriage was decreed when the
petitioner had consented to it. On 2.12.2005, an execution petition was filed
by Mst. Fareeha Ahmad, Respondent No. 1, in which an objection petition was
filed by Dr. Ejaz Naseem, which was dismissed on 21.4.2006. Revision was filed
against that order but it was withdrawn on 6.9.2006. Thereafter, an appeal
under Section 14 of the West Pakistan Family Courts Act, 1964 (hereinafter
referred to as the "Act") along with an application for condonation
of delay of 390 days, was filed. Learned District Judge, Islamabad, accepted
the appeal on 22.9.2006 and remanded the case to the learned Family Court for
trial afresh. This judgment was challenged by Mst. Fareeha Ahmed before the
Islamabad High Court, Islamabad, through Writ Petition No. 2938 of 2006 which
was accepted through the impugned judgment dated 31.10.2008 by setting aside
the judgment of learned District Judge, Islamabad, and upholding the judgment
and decree dated 7.5.2005 of the learned Judge Family Court, in favour of Mst.
Fareeha Ejaz, Respondent No. 1. Hence, this civil petition for leave to appeal
by Dr. Ejaz Naseem.
2. Petitioner's learned counsel submits that the learned
Judge Family Court, had got no jurisdiction to pass the decree on the basis of
compromise because in the written statement, the defendant-wife could be
allowed to make the claim for dissolution of marriage only including on the
basis of khula, in accordance with sub-clause (1b) of sub-section (1) of
Section 9 of the Act. The suit could not be decreed by the learned Judge Family
Court, with regard to other claims pleaded and raised in the written statement
of Respondent No. 1. Learned counsel further submits that consent of the party
could not confer jurisdiction upon the Court when it had got no statutory
conferment. He has referred to the following judgments:--
(1) Muhammad Afzal
v. Board of Revenue, West Pakistan and another (PLD 1967 S.C. 314);
(2) Ali Muhammad
and others v. Muhammad Shafi and others (PLD 1996 S.C. 292); and
(3) Islamic
Republic of Pakistan v. Messrs Conforce Limited and others (2001 CLC 1741).
3. On the other
learned counsel appearing on behalf of Respondent No. 1 submits that there was
no prohibition to make such claims in the written statement, if the learned
Judge Family Court was empowered by law to have the exclusive jurisdiction to
adjudicate all those claims, claimed by Respondent No. 1 in her written
statement. Petitioner had not raised any objection with regard to the
jurisdiction of the learned Judge Family Court at the time of passing of the
decree or at any time after the filing of written statement by Respondent No. 1
in that Court. Even issues framed had not contained any such issue with regard
to the jurisdiction of the learned Judge Family Court. When such was the case
and the compromise was entered into by plaintiff himself voluntarily, in such
an event, plaintiff was estopped to plead question of jurisdiction particularly
in the execution petition which was filed before the concerned executing Court.
Appeal filed under Section 14 of the Act was badly barred by time and was rightly
dismissed by the learned Judge in Chamber of the High Court.
4. After giving
anxious thoughts to the points raised, facts noted and to the judgments quoted,
we are not inclined to grant leave in this civil petition, because Section 5 of
the Act has conferred exclusive jurisdiction upon a Family Court to entertain,
hear and adjudicate upon matters specified in Part-I of the Schedule to the
Act. We have noted that Part I of the Schedule contains all those subjects for
which claims/prayers were made by Respondent No. 1 before the Family Court in
her written statement. In other words, the Family Court was possessed of the
jurisdiction by the aforementioned Act to adjudicate upon all those matters,
pleaded as counter claim in the written statement. Not only dissolution of
marriage yet dower, maintenance, restitution of conjugal rights, custody of
children, guardianship, jactitation of marriage, dowry, personal property and
belongings of wife are entered and included in the Schedule. To explain it
more, the jurisdiction of the learned Judge Family Court extends to decide all
those disputes which arise with regard to the items noted in Part I of the
Schedule. To examine it from another angle, the learned Judge Family Court had
got the jurisdiction to entertain, hear and adjudicate upon all those disputed
items, which were pleaded, claimed and raised by respondent Fareeha Ahmad in
her written statement. There was not a single
item noted in the written
statement which could be disputed and deemed to be falling outside the ambit of
the jurisdiction of the learned Judge Family Court. Therefore, the most
vehemently raised objection by the learned counsel for the petitioner that the
learned Judge Family Court had got no jurisdiction could not be proved a sound
and valid argument. At the most, the plaintiff could have raised that the
counter claims were containing multifarious prayers and reliefs, for which the
defendant could be ordered to bring out separate suits for those
prayers/reliefs/claims if the Court had considered it appropriate in the
circumstances of the case. The failure to raise such objection by the
plaintiff/petitioner, at the opportune moment, he can not now be permitted to
plead it at this stage, when particularly the consent decree was allowed to be
passed by the petitioner himself on the basis of compromise entered into by
him, without any objection to it. It has now created an estoppel as against the
petitioner who had through his own representation allowed the
Defendant/Respondent No.1 to accept the compromise and had let the compromise
become a consent decree of the Court. It does not now lie in the mouth of
petitioner to challenge that consent decree passed against him especially at
the stage of execution petition, and through an appeal which was barred by
inordinate delay of 390 days, which could not reasonably be condoned on any
sound reasoning.
5. Accordingly, we
have not found any illegality in the impugned judgment of the Islamabad High
Court. The Civil Petition is dismissed and the leave is refused.
(M.S.A.) Leave
refused.
