PLJ 2010 SC 891
[Appellate Jurisdiction]
[Appellate Jurisdiction]
Present: Iftikhar
Muhammad Chaudhry, CJ., Ch. Ijaz Ahmed & Rahmat Hussain Jafferi, JJ.
SAYED ABBAS TAQI MEHDI--Appellant
versus
Mst. SAYEDA SABAHAT BATOOL and
others--Respondents
Civil Appeals Nos. 955 & 956 of 2006,
decided on 3.11.2009.
(On appeal from the order dated 19.1.2005
passed by the Peshawar High Court, Peshawar,
in W.P. Nos. 44 & 45 of 2005).
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 8--Ex-parte
orders were passed on basis of strength of ex-parte
evidence--Suits for possession of half portion of house, dowry articles gifts
and golden ornaments & maintenance--Applications for setting aside ex-parte decrees were dismissed--Being aggrieved appeals were
also dismissed for non-prosecution--Constitution petitions were also
dismissed--Assailed--Concurrent findings--Validity--Family Court had dismissed
the applications for setting aside ex-parte decree on
merits as well being time barred as is evident from the orders--First Appellate
Court had dismissed the appeals--Concurrent conclusions arrived by Courts below
were upheld by High Court. [P.
898] A
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 17--Family Court can exercise its
own powers to prevent the course of justice being deflected from the
path--Applicability of Evidence Act and CPC qua the proceedings before Family
Courts--Held: Family Court has to regulate its own proceedings in accordance
with the provisions of Family Courts Act and in doing so it has to proceed on
the premises that every procedure is permissible unless clear prohibition is
found in law meaning thereby that Family Court can exercise its own powers to
prevent the course of justice being deflected from the path. [P. 898] B
Civil Procedure Code, 1908 (V of 1908)--
----O. V, R. 17--Service was effected in
view of remarks on registered which was sent by Family Court--Question of
applicability of C.P.C. in Family Courts--Held: Civil Procedure Code is not
applicable but the judge Family Court, is not debarred to follow the principle
of CPC coupled with the fact. [P.
898] C
Civil Procedure Code, 1908 (V of 1908)--
----O. III, R. 4(5)--West Pakistan Family
Courts Act, 1964, S. 8--No conflict between Order 3, CPC and provisions of
Family Courts Act--Scope of--Purpose and object to make provision establishment
of Family Courts for expeditious settlement and
disposal of disputes relating to marriage and family affairs and for matters
connected therewith as evident from preamble of West Pakistan Family Courts
Act--Held: Family Courts Act, be read as a whole then it is crystal clear that
what Family Courts Act, has done is that it has changed the forum, changed the
method of trial and empowered the Court to grant better remedies. [P. 898] D & E
1999 CLC 81, ref.
West Pakistan Family Courts Rules, 1965--
----R. 6--Scope of--No territorial
jurisdiction--Not valid attack in view of proviso of Rules 1965--Court within
the local limits of which wife ordinarily resides shall also have
jurisdiction--Rule 6 had been interpreted in various pronouncements by Courts
that Family Court within the local limits of which the wife ordinarily resides
has jurisdiction to take cognizance of the matter. [Pp. 898 & 899] F
PLJ 1976 Kar.
388, PLD 1988 Kar. 602 & PLD 2005 SC ref.
Nikahnama--
----Public document--Presumption attached
to the document--Concurrent findings--Concurrent findings of all the Courts
below the appellant could not advance any reason to dislodge the presumption to
the document i.e. nikahnama as being public document
and the execution of which was verified by Nikah
Registrar who is public officer and even a certificate can be produced in proof
of its content and in absence of any rebuttal the same holds the ground. [P. 899] G
1994 SCMR 1978, ref.
Ex-parte
decree--
----Remarks on registered
A/D--Justification--Service of the appellant had been effected in the case on
some address, therefore, remarks on the registered A/D with regard to refusal
of the appellant clearly showed that appellant was not mislead in view of
address mention in the plaint--Trial Court was justified to pass ex-parte decree against the appellant. [P. 899] H
PLJ 1978 SC 397, ref.
Pleadings--
----Parties are bound by their pleadings
as PLD 1974 SC 322--Held: Supreme Court does not allow any party to raise fresh
points or pleas which were not raised before the Courts below. [P. 899] I
PLD 1976 SC 766, AIR
1940 PC 219 & 1969 SCMR 96(2) & 1980 SCMR 933, ref.
Administration of Justice--
----Each and every case is to be decided
on its own peculiar circumstances and facts. [P.
899] J
1994 SCMR 2213.
Soliders (Litigation) Act, 1925--
----Ss. 10 & 37--Ex-parte decree--Notice had been pasted on outer door of
residential house--Serving soldier under special conditions--Ex-parte decree was liable to be set aside u/S. 10 of Soldiers
(Litigation) Act.
[P.
900] K
Constitutional Petition--
----Maintainability--Case was decided
only on ground of limitation where the case had decided on
merits--Constitutional petition is not maintainable qua finding of facts
recorded by Courts below as law laid down by Supreme Court. [P. 900] L
1974 SCMR 279, PLD 1981
SC 246 & PLD 1981 SC 522, ref.
Constitutional Jurisdiction--
----Constitutional jurisdiction is
discretionary in character--He who seeks equity must come with clean hands. [P. 900] M
Syed Zafar Abbas Zaidi, ASC for Appellant.
Mr. Muhammad Akram
Sheikh, Sr. ASC for Respondent No. 1.
Nemo for Respondent Nos. 2
& 3.
Date of hearing: 3.11.2009.
Judgment
Ch. Ijaz Ahmed,
J.--We intend to decide captioned appeals by one consolidated judgment having
similar facts and both are depended upon each other.
2.
Detailed facts have already been mentioned in the memo. of appeals/petitions and the impugned judgment. However,
necessary facts out of which the aforesaid appeals/petitions arise are that
Respondent No. 1/Plaintiff solemnized marriage with appellant/defendant on
25.2.2001 in accordance with the injunctions of Islam. Respondent No. 1 filed
suit against appellant in the Court of Family Judge, Nowshera,
for possession half portion of House No. RH/211, Block No, VIII Serial No. 818,
Hayatnagar, Muzaffargarh
having estimated cost of about Rs. 3,50,000/-, dowry
articles and gifts valuing Rs. About 3,15,000/- and golden ornaments weighing 30 tolas valuing about Rs.
2,00,000/- on 17.11.2001. Respondent No. 1 also filed suit against
appellant/defendant for maintenance from July, 2001 till date of the decree of the
suit at the rate of Rs. 1500/- per month alongwith expenditure of medical check up and medicines
etc. The Judge, Family Court, issued notices/summons on 17-11-2002 to the
appellant/defendant through Registered A/D with copies of plaint for
11-12-2001. The notices were dispatched to the appellant/defendant as is
evident from the Registered A/D which was returned with the remarks " " This fact
is evident from the original record of Judge, Family Court. On 11-12-2001, Haji Wali Muhammad Khan,
Advocate, appeared on behalf of the appellant/ defendant and filed memo. for appearance and secured adjournment for filing written
statements on behalf of appellant/defendant. The cases were adjourned for
14-12-2001. The said Advocate appeared on 14-12-2001 on behalf of
appellant/defendant and again sought time for filing wakalatnama/power
of attorney on behalf of appellant/defehdant. The
cases were adjourned for 23-1-2002. The cases were fixed before Judge, Family
Court on 23-1-2002 but neither the appellant/defendant had entered appearance
nor any one else had entered appearance on his behalf, therefore, ex-parte orders were passed against him by the Judge, Family
Court. The Judge, Family Court, after recording ex-parte
evidence passed ex-parte decrees on 11-4-2002 in favour of respondent/ plaintiff on the basis of the
strength of ex-parte evidence. Appellant/ defendant
filed applications on 14-4-2004 before the Judge, Family Court, setting aside
ex-parte decrees. The said applications were
dismissed vide order dated 10-5-2004. The appellant/defendant being aggrieved
filed appeals before the Additional District Judge, Nowshera,
which were initially dismissed for non-prosecution vide otder
dated 29.6.2004. Thereafter, appeals were restored on the applications of the
appellant/defendant. The learned Additional District Judge dismissed the
appeals vide order dated 11-11-2004. Thereafter appellant/defendant being
aggrieved filed Constitutional Petition Nos. 44 & 45 of 2005 in the
Peshawar High Court, Peshawar, which were dismissed vide impugned judgment
dated 19.1.2005. The appellant/defendant filed C.P.Nos.
229-P and 230-P/2005 before this Court which were fixed on 10-5-2006 and the
following order was passed:--
"The
learned counsel for the petitioner submits that service of the petitioner was
not effected in terms of Section 8 of the West Pakistan Family Courts Act,
1964, therefore, the application of the petitioner for setting aside the ex-parte decree was not time barred but this fact was not considered
by the Courts below in its true perspective.
We
may observe that Rule 13 of the W.P. Family Court Rules, 1965 framed under the
West Pakistan Family Courts Act, 1964, which has been the basis to dismiss the
application of the petitioner as barred by time, has already been declared as
ultra vires of Section 9 of the said Act by this
Court in Maj. Matloob Ali Khan V. Additional District
Judge, East Karachi and another (1988 SCMR 747).
In
this view of the matter, let in the first instance, notice be
issued to the respondents for a date after two weeks...."
The cases were fixed before the Court on
2-6-2006 and leave was granted in the following terms:--
"Leave is granted to consider, inter
alia, the contentions noted in the order dated
10-5-2006 of this Court."
3.
Hence the present appeals.
4.
The learned counsel for the appellant submits as under:--
(i) The Judge, Family Court, had no
jurisdiction whatsoever to take cognizance of the matter as the nikkah was solemnized between the appellant and Respondent
No. 1 in Multan.
(ii) Respondent
No. 1 had filed suits before Judge, Family Court, Nowshera,
as her brother Asghar Hussain
Shah Bukhari, who is serving in Pak Army, is posted
at Nowshera.
(iii) Respondent
No. 1 had secured ex-parte decree by playing fraud
with the Court by mentioning wrong address of the appellant/defendant as
Respondent No. 1 has mentioned the address of the appellant/defendant i.e.
resident of Mohallah Hayat Nagar, Tehsil and District Muzaffargarh whereas the appellant/defendant is permanent
resident of Lia. This fact was known to her.
(iv) The
Service of the appellant/defendant was not effected.
Appellant/defendant had not engaged Wali Muhammad
Khan, Advocate, who appeared before the Court without any power of attorney and
without his instructions and this fact was also not considered by the Courts
below in its true prospective.
(v) The
appellant/defendant has been condemned unheard throughout the proceedings. All
the Courts have acted on presumptions and surmised qua the appearance of said Haji Wali Muhammad Khan, Advocate
as well as qua service of the appellant/defendant.
(vi) The first appellate Court had also erred in
law to dismiss the appeal of the appellant on technical ground in violation of
the law laid down by this Court.
(vii) All
the Courts below had decided the case against the appellant/defendant in
violation of mandatory provisions of Sections 6 to 9 of West Pakistan Family
Courts Act, 1964.
5.
The learned Counsel for the respondent has supported the impugned
judgment. The address of the appellant in Column No. 10 in nikkah
nama is exactly the same
which was mentioned by Respondent No. 1 in her suits. Appellant/defendant has
also mentioned the same address in his Constitutional Petitions before the High
Court and Civil Petitions/Appeals before this Court. Appellant/defendant was
also served with notice/summons alongwith copy of
plaint through registered A/D and the same was returned with the remarks that
the appellant/defendant refused to accept the same. The learned counsel for the
appellant has failed to point out any infirmity or illegality in the impugned
judgment.
6.
We have given our anxious consideration to the contentions of the
learned counsel for the parties and perused the record. It is better and
appropriate to reproduce the operative parts of the applications filed by the
appellant/defendant for setting aside the decree before the Judge, Family Court
and relevant facts in chronological order to resolve the controversy between
the parties:--
(a) Respondent
No. 1 filed two suits. First for possession of house, dowry
and gift articles and golden ornaments and the second for maintenance etc.
(b) Judge,
Family Court, sent notices/summons to the appellant/defendant on 17-11-2001 alongwith copies of plaint through registered A/D for
11-12-2001.
(c) Registered
A/Ds received back with the following remarks:
(d) On
11-12-2001 Haji Wali
Muhammad Khan, Advocate, entered appearance on behalf
of appellant/defendant and got adjournment for filing written statement. The
case was adjourned for 14-12-2001.
(e) The
said Advocate again appeared and sought adjournment for filing proper wakalatnama. The case was adjourned for 23-1-2002.
(f) On
23-1-2002 neither the said Advocate had entered appearance nor anybody else appeared on behalf of the appellant/defendant. Exparte order was passed against appellant/defendant.
(g) The
Judge, Family Court, recorded the exparte evidence of
the respondent/plaintiff.
(h) The
Judge, Family Court, passed exparte decree on
11.4.2002 in favour of Respondent No. 1/plaintiff.
(i) Appellant/defendant filed
application for setting aside ex-parte decree mainly
on the following grounds which are reproduced hereunder:--
(j) The
said applications were dismissed by the Judge, Family Court,
vide orders dated 10-5-2004.
(k) The
appellant/defendant filed appeals before the learned Additional District Judge
who dismissed the same vide orders dated 11.11.2004.
(l) The
appellant/defendant filed Constitutional Petitions Nos. 44 & 45 of 2005
which were dismissed by the High Court vide impugned
judgment dated 19-1-2005.
7.
It is pertinent to mention here that Family Court had dismissed the
applications for setting aside ex-parte decree on
merits as well being time barred as is evident from the orders dated 10-5-2004.
Similarly First Appellate Court had dismissed the appeals vide orders dated
11-11-2004 on merits. The concurrent conclusions arrived by the Courts below
were upheld by the learned High Court vide impugned judgments. It is also
admitted fact that provisions of Evidence Act and Code of Civil Procedure are
not applicable qua the proceedings before the Judge, Family Court, in terms of
Section 17 of West Pakistan Family Courts Act, 1964, therefore, under West
Pakistan Family Courts Act, 1964, the Family Court has to regulate its own
proceedings in accordance with the provisions of this Act and in doing so it
has to proceed on the premises that every procedure is permissible unless clear
prohibition is found in law meaning thereby that the Family Court can exercise
its own powers to prevent the course of justice being deflected from the path.
Keeping in view the circumstances of the case in hand the learned Judge Family
Court, had rightly come to the conclusion that service of the
appellant/defendant was effected in view of the remarks on the registered A/D
which was sent by the Family Court to the appellant/defendant. The finding is
based on logic. It is also in consonance with Order V, Rule 17 of CPC. As
mentioned above CPC is not applicable but the Judge, Family Court, is not
debarred to follow the principle of CPC coupled with the fact that Haji Wali Muhammad Khan,
Advocate, had appeared befote the Court twice who
could not appear unless and until he had received instructions on behalf of
appellant/defendant either directly or through his agent which is also in
consonance with Order III, Rule 4(5) CPC. There is no conflict between Order
III, Rule 4(5) CPC and provisions of West Pakistan Family Courts Act, 1964. The
purpose and object to make provision for the establishment of Family Courts for
the expeditious settlement and disposal of disputes relating to marriage and
family affairs and for matters connected therewith as is evident from the
preamble of the said Act. It is settled principle of law that Act be read as a
whole then it is crystal clear that what the Family Courts Act has done is that
it has changed the forum, changed the method of trial and empowered the Court
to grant better remedies. See Ghulam Murtaza's case (1999 CLC 81). The contention of the learned
counsel for the appellant that Judge, Family Court at Nowshera
had no territorial jurisdiction is not valid attack in view of proviso of Rule
6 West Pakistan Family Courts Rules, 1965 wherein it is specifically provided
that the Court within the local limits of which wife ordinarily resides shall
also have jurisdiction. The said rule had been interpreted in various
pronouncements by the superior Courts and laid down a law that the Family Court
within the local limits of which the wife ordinarily resides has jurisdiction
to take cognizance of the matter See:--
(i) Mahboob
Ahmad's case (PLJ 1976 Kar. 388)
(ii) Bibi Anwar Khatoon's
case (PLD 1988 Kar. 602)
(iii) Muhammad Iqbal's
case (PLD 2005 SC 22).
Apart from the concurrent findings of all
the Courts below the appellant could not advance any reason to dislodge the
presumption attached to the document i.e. nikahnama
as being public document and the execution of which was verified by Nikah Registrar who is public officer and even a
certificate may be produced in proof of its content and in the absence of any
rebuttal the same holds the ground. See Mst. Zubdida Bibi's case (1994 SCMR
1978). As mentioned in the narration of facts the address of the
appellant/defendant is mentioned by the respondent/plaintiff in her plaints
which is consonance qua the address of the appellant/defendant mentioned in
Column No. 10 of nikahnama, The
same address was also mentioned by the appellant himself before High Court as
well as before this Court. Even otherwise Respondent No. 1 alongwith
her son filed a suit against appellant/defendant before the Judge, Family
Court, Multan, with the same address i.e. Mohallah Haydt Nagar, Tehsil and District Muzaffargarh. The service of the appellant/defendant had
been effected in the said case on the same address, therefore, remarks on the
registered A/D with regard to refusal of the appellant/defendant clearly showed
that appellant was not mislead in view of the address mentioned by
respondent/plaintiff in her plaints, therefore, trial Court was justified to
pass ex-parte decree against the appellant/defendant.
See Mst. Ismat Khanum Toor's case (PLJ 1978 SC
397). It is an admitted fact that twice the said Advocate appeared before the
Judge, Family Court, and secured adjournment coupled with the fact that the
appellant/defendant had not raised objection to jurisdiction in his application
filed by him for setting aside ex-parte decree as is
evident from the contents of the application which have reproduced herein
above. It is settled principle of law that parties are bound by their pleadings
as law laid down by this Court in Murad
Begum's case (PLD 1974 SC 322). This Court generally does not allow any party
to raise fresh points or pleas which were not raised before the Courts below.
There are various pronouncements of this Court. See:--
(a) Ashfaqur Rehman Khan's case (PLD
1971 SC 766)
(b) John
E. Brownlee's case (AIR 1940 P.C. 219)
(c) Sardar Muhammad Ayub's case (1969
SCMR 96(2); and
(d) Ghulam
Muhammad's case (1980 SCMR 933).
It is settled principle of law that each
and every case is to be decided on its own peculiar circumstances and facts as
law laid down by this Court in Trustees of the Port of Karachi's
case (1994 SCMR 2213 and Gulzar Khan's case (NLR 1982
SCJ 197). The facts of the case, i.e. Maj. Matloob
Ali Khan v. Additional District Judge, East Karachi and another (1988 SCMR 747)
relied upon by the learned counsel for the appellant, are not relevant to
decide the controversy in the case in hand in view of its own facts where Major
Matloob is in the service of Pakistan Army. Notice
had been pasted on the outer door of residential house in which his family
members resided at Karachi who had relied on Section 37 of the Soldiers
(Litigation) Act, 1925 and had contended that as he was a serving soldier,
under special conditions, the ex-parte decree was
liable to be set aside under Section 10 of the said Act. The said case was
decided only on ground of limitation where the case in hand had decided on
merits as mentioned hereinabove. It is also settled principle of law that
constitutional petition is not maintainable qua finding of facts recorded by
the Courts below as law laid down by this Court in Khuda
Bukhsh's case (1974 SCMR 279), Muhammad Sharif's case (PLD 1981 SC 246) and Sultan's case (PLD 1981
SC 522). It is settled principle of law that constitutional jurisdiction is
discretionary in character. He who seeks equity must come with clean hands. In
view of the conduct of the appellant/defendant we are not inclined to exercise
our discretion in favour of the appellant/defendant
as law laid down by this Court in various pronouncements. See:--
(a) Wali Muhammad's case (PLD 1974 SC 106)
(b) Nawab Syed Raunaq
Ali's case (PLD 1973 SC 236)
(c) Rana Muhammad Arshad's case (1998
SCMR 1462) and
(d) G.M.
Malik's case (1990 CLC 1783)
8.
In view of what has been discussed above we do not find any merit in
these appeals and the same are dismissed with no order as to costs.
(R.A.) Appeals
dismissed.
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