PLJ 2006 Lahore 185
Present: Muhammad Muzammal Khan, J.
GHULAM ABBAS--Petitioner
versus
PROVINCE OF PUNJAB through DISTRICT COLLECTOR JHANG
and 9 others--Respondents
and 9 others--Respondents
W.P. No. 5373 of 2005, decided on
10.6.2005.
Administration of Justice--
----Anyone dispensing judicial or
quasi-judicial functions, if was not conferred any jurisdiction over some
matter, the same could not be injected by consent/concurrence of parties to
lis. [P. 189] C
Conciliation Courts Ordinance, 1961--
----S. 7(2) read with Sch., Part
I(b)--Jurisdiction of Conciliation Courts--Held: Conciliation Courts were given
jurisdiction in civil matters having value upto Rs. 1,00,000/- and it was no
where provided that they were conferred with jurisdiction to impose a penalty
of Rs. 1,00,000. [P. 188] A
Conciliation Courts Ordinance, 1961--
----S. 5 read with S. 7 &
Schedule--Constitution of reconciliation committee--Legal status--Chairman
constituted reconciliation committee on application of petitioner (husband) for
seeking direction to Respondent No. 10 (wife) to perform her marital
obligations--Held: Such a Committee did not figure any where in the
Ordinance--By no standard such committee could act as reconciliation Court
under S. 5(1) for assuming jurisdiction under S. 7(2) of the said
ordinance--Held further: Chairman or reconciliation committee could not even
entertain any dispute regarding resolution of conjugal rights as same was not
included in schedule to the Ordinance High Court declared order of committee
imposing penalty of Rs. 1,00,000/- to petitioner, as without jurisdiction. [Pp. 188 & 189] B & D
Constitution of Pakistan, 1973--
----Art. 199--Writ
jurisdiction--Laches--Condonation of delay--Held: Petitioner had already filed
application for condonation of delay and had fully explained such delay in
detail--According to which he did not sleep over his rights and did not accept
impugned orders at any stage which were ultimately challenged by present writ
petition--As impugned orders were patently void and so an illegality could not
be allowed to be perpetuated, High Court condoned delay in such circumstances. [Pp. 189 & 190] E
PLD 1964 SC 97; PLD 1958 SC 104 and PLD
2003 SC 132 ref.
Mr. Khalid Ikram Khatana, Advocate for
Petitioner.
Mr. Muhammad Yasin Badar, Advocate for
Respondents.
Date of hearing: 10.6.2005.
Order
Instant Constitutional petition prayed
order dated 11.6.2003 passed by reconciliation committee (Respondents Nos. 6 to
8) to be declared illegal, void and of no legal consequence whereby the
petitioner was burdened with a penalty of Rs. 1,00,000/- for not abiding with
his commitment and the decision of the reconciliation committee dated
25.6.2003.
2.
Precisely relevant facts are that Respondent No. 10 was married with the
petitioner on 22.12.1998 through a registered Nikah Nama according to Muslim
Rites, in exchange of marriage of her brother with sister of the petitioner.
Rukhsati of Respondent No. 10 did not take place at the time of Nikah.
3.
The petitioner filed an application before Respondent No. 4 for grant of
permission of second marriage which was withdrawn and another application was
filed by him, for a direction that Respondent No. 10 may be ordered to join him
as his wife, in form of restitution of conjugal rights. Reconciliation
committee was constituted by Respondent No. 4 consisting of Respondents Nos. 6
to 8 who with the concurrence of the parties resolved the matter on 11.6.2003
requiring the petitioner to give further assurance through some writing that he
will provide to his wife a healthy atmosphere. Petitioner did not abide with
the decision dated 11.6.2003 of the reconciliation committee whereupon he was
burdened with an amount of Rs. 1,00,000/-, payable to Respondent No. 10 and
accordingly a decree was passed on 25.6.2003.
4.
Petitioner being aggrieved of decision of reconciliation committee dated
25.6.2003 filed a suit for declaration with permanent injunction before the
learned Civil Judge, Shorkot, District Jhang but withdrew the same, without
adjudication on 20.10.2004. He thereafter filed an appeal before the learned
District Judge, Jhang against the order of reconciliation committee dated
25.6.2003 and withdrew this appeal, as well, on 14.4.2005. He then moved an
application before the District Officer (Revenue) for stay of recovery of Rs.
1,00,000/- from him. This petition was also withdrawn by him on 4.5.2004 and on
the same day, he filed instant Constitutional petition before this Court with
the relief noted above. In response to notice by this Court, the respondents
have appeared and are represented through their counsel.
5.
Learned counsel for the petitioner submitted that reconciliation
committee constituted by Respondent No. 4 had no jurisdiction to impose penalty
of Rs. 1,00,000/- as under Section 7 of the Conciliation Courts Ordinance,
1961, maximum penalty of Rs. 500/- could have been awarded. It was further
argued that the impugned order is without jurisdiction, as Respondents Nos. 6
to 8 had no lawful jurisdiction to pass the same and could at the most refer
the matter with their recommendations to Respondent No. 4. It was further
submitted that petitioner had been following the matter vigorously before
different forums thus, delay, if any, in approaching this Court, deserved to be
condoned under Section 14 of the Limitation Act, 1908 and for this purpose a
separate application, explaining reasons for the delay in approach to this
Court has been filed.
6.
Learned counsel for the respondents opposed the arguments of the
petitioner, supported the impugned order and urged that Constitutional petition
before this Court suffered from laches which inspite of void order cannot be
condoned in view of law laid down by the Hon'ble Supreme Court in the cases of
Khiali Khan versus Haji Nazir and 4 others (PLD 1997 SC 304) and Members
(S&R)/Chief Settlement Commissioner, Board of Revenue, Punjab, Lahore and
another versus Syed Ashfaque Ali and others (PLD 2003 S.C. 132). It was further
submitted on behalf of the respondents that under Section 7(2) read with
Section (B) of Part-I of the Schedule to the Conciliation Courts Ordinance, 1961,
the reconciliation committee had jurisdiction to award penalty of Rs.
1,00,000/- thus the impugned order is not void. It was argued with emphasis
that in all civil cases in which value of the claim does not exceed to Rs.
1,00,000/- the Conciliation Courts was competent to pass any order, including
the orders like the one impugned. It was further contended that the impugned
order was passed in presence of the petitioner, as is evident from the fact
that he filed a suit on 1.9.2003 before the Civil Court and had been maintaining
certain incompetent proceedings there against thus, approach to this Court
after lapse of two years is not condonable.
7.
I have minutely considered the respective arguments of the learned
counsel for the parties and have examined the record, appended herewith. Before
taking up the case on merits, I would like to examine legality or otherwise of
the impugned order through which application of the petitioner seeking
restitution of conjugal rights was not decided and he was burdened with a
penalty of Rs. 1,00,000/- on account of not furnishing written undertaking of
keeping his wife with harmony in compliance to order of the reconciliation
committee dated 11.6.2003. The reconciliation Courts constituted under the
Conciliation Courts Ordinance, 1961 were given jurisdiction with regard to
matters detailed in the schedule appended therewith, which included criminal,
as well as, civil cases. In later mentioned cases, jurisdiction of the
reconciliation Courts extended to the matters value of the claim in which did
not exceed Rs. 1,00,000/-. Relevant Part-II of the schedule reads as
under":
"All civil cases (excepting those
mentioned in Section B of Part-I of this Schedule), in which the value of the
claim does not exceed Rs. 1,00,000/-."
The above reproduced Part-II of the
Schedule clearly depicts that pecuniary jurisdiction of the arbitration Courts
was fixed at Rs. 1,00,000/- and it does not convey that the Courts were
conferred with jurisdiction to impose a penalty of Rs. 1,00,000/-. There is no
provision in he Conciliation Courts Ordinance, 1961 equipping Respondents Nos.
6 to 8 to act as a conciliation committee and to discharge functions fo
conciliation Court or to penalize any of the parties before them, with any kind
of penalty thus, the impugned order was passed without any backing of law and
is patently corum-non-judice. Record revealed that Respondent No. 10 had
subsequently filed a suit for dissolution of her marriage and the petitioner
instituted suit for restitution of conjugal rights and the learned Judge Family
Court concerned dissolved the marriage out of consolidated judgment dated
28.1.2004 refusing restitution of conjugal rights. The petitioner had been
running to pillar to post for bringing Respondent No. 10 to his house for performing
marital obligations and in this effort, he moved an application before
Respondent No. 4 who constituted the reconciliation committee. Examination of
provisions of law applicable, revealed that such a committee does not figure
any where and the one which could be constituted was conciliation Court, in
terms of Section 5 of the Ordinance, 1961 which had to be a body consisting of
a Chairman and tow representatives to be nominated in the prescribed manner,
one by each of the parties to the dispute. By no standard, the committee of
Respondents Nos. 6 to 8 could act as reconciliation Court under Section 5(1) of
Ordinance (ibid) and to assume jurisdiction in terms of Section 7(2) of the
Ordinance. For elucidation, we can refer the judgment in the case of Arbab
Hafizullah Khan versus Mir Badshah and another (PLD 1968 Peshawar 190). Under
law, any one dispensing judicial or quasi judicial functions, if was not
conferred any jurisdiction over some matter, the same cannot be injected by
consent/concurrence of the parties to the lis. Reference in this behalf can be
made to judgments in the cases of Muhammad Swaleh and another versus Messrs
United Grain & Fodder Agencies (PLD 1964 SC 97) and Yousaf Ali versus
Muhammad Aslam Zia and 2 others (PLD 1958 SC 104). As a matter of fac,
Respondent No. 4 or Respondents Nos. 6 to 8 could not even entertain any
dispute regarding restitution of conjugal rights as the same was not included
in the Schedule to Ordinance (ibid) wherein, civil cases triable by
conciliation Courts only included suits for recovery of money on contracts, for
recovery of movable property, for compensation on wrongful taking or damage to
movable property and for damages by cattle trespass. In this manner, as well,
order of Respondents Nos. 6 to 8 (reconciliation committee) is without
jurisdiction.
8.
Coming to merits of the case, application of the petitioner before
Respondent No. 4 had prayed that his wife, Respondent No. 10 may be made to
live with him for performing martial obligations. Such an application to
establish conjugal rights, as observed above, could not have been entertained,
adjudicated or decided by Respondents Nos. 4 to 8 and if they could not decide
it, how they could pass any order, like the one impugned before this Court but
they being oblivious of their short comings of jurisdiction, without lawful
powers burdened the petitioner with an excessive/exorbitant penalty. Petitioner
was not granted his prayer and instead was wrongly made liable to pay Rs.
1,00,000/- which was disproportionate to the default committed by him.
9.
Efforts of the petitioner have already been detailed in factual part of
this judgment which show that he did not sleep over his rights and did not
accept the orders impugned at any stage which were ultimately challenged by him
through instant Constitutional petition. The petitioner has already moved an
application for condonation of laches suffered in approaching this Court and
according to the principles laid down by the Hon'ble Supreme Court in the case
of Member (S&R)/Chief Settlement Commissioner), Board of Revenue, Punjab,
Lahore and another versus Syed Ashfaq ALi and others (LD 2003 SC 132)
petitioner has explained delay in his approach to this Court through petition
in hand. Besides all this, orders impugned being patently void cannot remain in
field and an illegality cannot be allowed to be perpetuated solely
for the reason that the
petitioner being illiterate kept on roaming before different Courts/authorities
who could not adjudge/rescind the orders passed by an incompetent forum i.e.
conciliation committee consisting of Respondents Nos. 6 and 8. Besides these
reasons, grounds urged in C.M. No. 1/2005 filed by the petitioner under
Sections 5 and 14 of the Limitation Act, 1908 are enough to condone the laches.
10.
For the reasons noted above, impugned order by Respondents Nos. 6 to 8
(conciliation committee) being illegal, void and without jurisdiction are
declared to be so and instant petition is allowed, in consequence of which,
writ as prayed is issued with no order as to costs.
(J.R.) Petition
allowed.
