Sunday, 20 May 2012

Estoppel in a Family Suit

PLJ 2007 Lahore 584

[Multan Bench Multan]

Present: Iqbal Hameed-ur-Rehman, J.

MUHAMMAD ZAFAR YAB--Petitioner

versus

ADDITIONAL DITRICT JUDGE--Respondent

W.P. No. 6019 of 2004, decided on 28.2.2007.



Contract Act, 1872 (IX of 1872)—



----S. 28--Dissolution of marriage--Benefit of compromise/statement--Principle of estoppel would be fully attracted in the instant case--Petitioner would had the full opportunity of contesting the suit for dissolution of marriage and thereafter seeking its further remedies in accordance with law--Respondent made the statement and achieved the benefit of the statement and after filing of the suit for recovery of dowery article, in contrary to her undertaking in a Court of law, cannot be justified--Principle of estoppel will apply but Courts below have failed to look into such aspect of the case by not taking into consideration that respondent through her acceptance of the petitioner's statement and her statement had also used the process of law in getting benefit--It was a simple undertaking before a Court of law to avoid the rigorous of trial--It was a compromise effected between the parties on the basis of which respondent was granted the decree for dissolution of marriage by the Family Court.

      [Pp. 587 & 588] A

Malik Muhammad Usman Bhatti, Advocate for Petitioner.

Rana Muhammad Shakeel, Advocate for Respondent No. 3.

Date of hearing: 28.2.2007.

Order

Mst. Robina respondent filed a suit for dissolution of marriage against the petitioner/defendant in the Court of learned Judge Family Court Lodhran. During trial of the said case, Muhammad Zafar Yab petitioner/defendant made an offer to the Court that if respondent/plaintiff agreed not to file any suit for recovery against him, he would be ready to give talaq to the plaintiff. This offer was accepted by the plaintiff. Both the parties made statements to this effect and on the basis of the said compromise, the learned trial Court vide order dated 3.10.2004 decreed the suit of the plaintiff.

2.  Thereafter Mst. Robina filed a suit against the petitioner for recovery of dowry articles before the learned Judge Family Court Karor Pacca. The petitioner/defendant contested the suit and filed written statement in which he took preliminary objection that the suit was not maintainable because the plaintiff had obtained decree of khula on the basis of her statement made before the learned Judge Family Court that she will not file any suit for recovery against the petitioner. On the divergent pleadings of the parties, the learned trial Court framed the following issues:

1.    Whether the plaintiff is entitled to recover the articles of dowry as mentioned in the plaint?

2.    Whether plaintiff has no cause of action to file the instant suit and the same is liable to be dismissed?

3.    Whether the instant suit is not maintainable in its present form.? OPD

4.    Whether the instant suit is time barred? OPD

5.    Whether the plaintiff is estopped to file the instant suit as per statement dated 3.10.2001 recorded before the Court of Senior Civil Judge/Judge Family Court? OPD

6.    Whether the defendant is entitled to recover the special costs Rs. 25,000/-.

7.    Relief.

At the trial the parties led their respective evidence and at the end of the trial the learned trial Court vide judgment dated 8.5.2004 decreed the suit in respect of all the articles of dowry mentioned in the plaint except golden ornaments.

3.  Feeling aggrieved of the impugned judgment and decree Muhammad Zafar Yab petitioner/defendant filed an appeal in the Court of learned Addl. Distt. Judge Karor Pacca. Mst. Robina Begum also not feeling satisfied with the judgment, and decree of the learned trial Court, filed an appeal in the Court of learned Addl. Distt. Judge Karor Pacca. Both the appeals were consolidated and vide consolidated judgment dated 13.9.2004 the learned Addl. Distt. Judge accepted the appeal filed by Mst. Robina Begum and dismissed the appeal of the petitioner. Through this constitutional petition the petitioner has challenged the impugned judgments and decrees of both the learned Courts below.

4.  Learned counsel for the petitioner has contended that Mst. Robina had obtained the decree for khula in the suit filed by her for dissolution of marriage on the condition that she will not file any suit for recovery against the petitioner. Therefore, now she cannot bring a second suit in view of the principle of estoppel; that no independent witness was produced by the plaintiff and she herself alongwith her father had entered into the witness box. They both are interest witnesses and their version need corroboration which was lacking in the present case and that both the learned Courts below had wrongly described the compromise as a contract reached between the parties in the Court on the basis of decree of khula and wrongly applied the provisions of Contract Act.

5.  On the other hand learned counsel for the respondent has submitted that any contract made between the parties by which any party thereto was restricted from enforcing its right through Court is void and that even the respondent/plaintiff had vehemently denied in her cross-examination of having entered into any such agreement; that the petitioner himself had implied admitted that the respondent had brought dowry; that the learned trial Court had erroneously passed the decree to the extent of dowry articles amounting to Rs. 20,000/- and that the learned Addl. Distt. Judge Karor Pacca has rightly accepted the appeal of the respondent and rejected the appeal of the petitioner and that in writ jurisdiction factual controversy cannot be resolved, therefore, the present petition is not maintainable.

6.  Arguments heard. Record perused.

7.  Admittedly, both the parties i.e. the petitioner and Respondent No. 3, on 3.10.2001 appeared before the Judge Family Court, Lodhran. Initially, the petitioner recorded his statement as under:--



Thereafter, Respondent No. 2 got record her statement as below:--



Afterwards, the Judge Family Court, Lodhran passed for following order:--



Both the Courts below have taken the aforesaid statements to be a contract between the parties and have held that such like contracts having been entered into are against law & void ab-initio according to Section 28 of the Contract Act.

8.  Keeping in view the statement of the petitioner and Respondent No. 3 before the trial Court and subsequent order dated 30.10.2001 wherein the statement of the petitioner as well as that of Respondent No. 3 were recorded and consequently effected through the decree of dissolution of marriage upon giving an undertaking by her that if the petitioner divorces her, she would not file any suit for recovery. The statement and the subsequent decree obtained by Respondent No. 3 could not be deemed to be a contract or agreement, it was a simple undertaking given by Respondent No. 3 in a competent Court of law and thereafter her suit was decreed. She has reaped the benefit of the undertaking compromise/statement and entered into a compromise before the Court at that stage and had fully obtained the benefit of her statement in the shape of obtaining a decree for dissolution of her marriage, as such, the principle of estoppel would be fully attracted in the instant case. Be that as it may, even otherwise, the petitioner would had the full opportunity of contesting the suit for dissolution of marriage and thereafter seeking its further remedies in accordance with law. Respondent No. 3 firstly made the statement and achieved the benefit of the statement and after this, institution of the suit for recovery of dowry articles  in  contrary  to  her  undertaking  in  a  Court  of  law, cannot be has been held by the Honourable Supreme Court of Pakistan while convicting these persons that the intention of these persons was to bring the authority of Supreme Court into disrespect/disrepute and to lower its integrity. The appointment of these two persons on the post of advisor-ship is in complete derogation of the findings of the Honourable Supreme Court of Pakistan. On this count too their notifications are liable to be annulled. In view whereof, on both the above counts, notifications of the appointment of Mian Muhammad Munir and Akhtar Rasul, as Advisors to Government of Punjab are without jurisdiction, illegal and without lawful authority and these two persons are not eligible to be appointed to any public office or to any post of Provincial of Federation of Pakistan.

 (R.A.)     Petition accepted.


No comments:

Post a Comment

Contact International Lawyer

If you have any queries related with this post you can contact at internationallawyerinfo@gmail.com

Regards,
Salman Yousaf Khan
Chairperson
International Lawyer
+92-333-5339880