Saturday, 19 May 2012

What kind of cases family courts can hear

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.


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